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Full text of "Federal Reporter (F1), Volume 019"

This volume was donated to LLMC 

to enrich its on-line offerings and 

for purposes of long-term préservation by 

Northwestern University School of Law 



National Reporter System. United States Séries. 

THE FEDERAL EEPORTEE. 

VOL. 19. 



CASES ARGUED AND DETERMINED 



m THB 



CIRCUIT AND DISTRICT COURTS 



OF THB 



UNITED STATES. 



FEBRUARY— MAY, 1884. 



EOBERT DESTY, Editob. 



SAINT PAUL: ' 

WEST PUBLISHING COMPANY. 
1884. 



Copyright, 1884, 

BY 
WEST PUBLISUING COMPANY. 



UNITED STATES 

Circuit and District Courts 



WITH THE 



SUBJECTS OF THE OPINIONS REPORTED IN THIS VOLUME. 



FIRST CIRCUIT. 

HORACE GRAY, Associate Justice of the Suprême Court. 

JOHN LOWELL, Circuit Judgb. 

Admirai ty — liability of schooner Joint-stock oorapany — fraud of di- 

for supplies — home port — name of rectors — action, 468. 

port on stern — master — acting and Patent — expiration of demurrer, 823. 

managing owner — insurance, 127. Paient. — personal property, 753. 

Contempt — power of c:urt to revoke Fatenl— paîentability — iraproved 

its orders, 810. monkt y Trrench, 498. 

Foreign corporations — power to hold Patent — lâches — pending litigation, 

land — doed — acknowledgraent — 420. 

estoppol, 73. Patent — infringement — second ao- 

Praud on creditors — conveyance in tion for damages, 258. 

lieu of attachment, 237. 

NATHAN WBBB, District Judge, Maine. 

DANIEL CLARK, District Jodge, New HA>rpsHiRE. 

Jnrisdiction — foreclosure of railroad mortgage — receiver— évidence, 342. 

THOMAS L. NELSON, District Judgb, Massachusetts. 

Equity pleading — survival of liahility Patent — reissue — sewing-machine, 

for breach of trust — joint breach of 428. 

trust — jurisdiction, 471. Patent — extraction of gélatine from 

Jurisdiction of circuit and district fish-.skins — décision of patent- 
courts — bill of revivor — statute of office, 426. 
limitations — lâches, 53. Railroad consolidation — equity — 

Patent — horse-shoe nail — infringe- pooling agent — parties to suit — 

ment, 819. contract — ealoppel, 804. 

LE BARON B. COLT, District Judgb, Rhodb Island. 

Patent— contempt— évidence, 602. Trade-mark — transfer by gênerai 

Patent— improvement in looms, 600. conveyance, 596. 



SECOND CIRCUIT. 

SAMUEL BLATCHPORD, Associatb Justice op the Buprb.me Court. 

Jurisdiction of circuit court— appeal Patent — motion for injunction, 97. 
from district court — equity pro- Patent— invention, 815. 
ceedings, 387. 

:iii) 



IV 



UNITED STAÏE3 CIRCUITS. 



WILLIAM J. WALLACE, Circuit Judge. 
Collision — division of loss, 46. 
Corporations — contract witli stock- 

liolders — mortgage of franchise, 

388. 
Equity practice — application for re- 

liearing — lâches, 828. 
Fire Insurance — description of prem- 

ises — warranties — conditions — for- 
faiture, 887. 
Internai revenue — notes redeemable 

in goods, 723. 
Municipal bonds — statutory require- 

ments — tax-payers deflned, 725. 
Négligence — i^erson al injury — prior- 

ity of contract, 926. 
Negotiable paper— qualified indorse- 

ment — notice — action for money 

had and received, 301. 
New trial — damages — personal in- 
jury, 808. 
Patent — tiling — previous state of art, 

756. 
Patent— reissue— Chemical thermom- 

eter, 749. 
Patent— crimping-machine — claims, 

599 
Patent— estcppel, 322. 



Patent— paper oox, 320. 

Patent — évidence — judgment — 
strangers to suit, 321. 

Patent— perforated cigar, 319. 

Patent — basket lantern — decree — 
right to relief, 317. 

Post-roads — railroads — telegraph 
companies, 660. 

Railroad mortgage bonds — action for 
interest — tender of scrip, 867. 

Removal of cause — amending com- 
plaint, 801. 

Removal of cause — case involving 
fédéral law— separate controversy, 
561. 

Removal of cause — practice in state 
court — survival of proceedings in 
state courts, 235. 

Removal of cause — separate contro- 
versy — bill against fraudulent trus- 
tées — filing pétition before trial, 
145. 

Removal of cause — Rev. St. J 639, 
subd. 3 — citizenship at institution 
of suit, 49. 

Service of process on attorney — in- 
junclion, 346. 



NATHANIEL 8HIPMAN, Disthict Judqb, Connbcticut. 

New trial — verdict against évidence, Railroad companies— receivers — col- 

405. lusion, 663. 

Patent — previous state of art — copy 
distributor, 422. 



A. C. COXB, District Judob, N. D. New 
Admiralty — costs — settlement, 800. 
Bankruptcy — renewal note, 87.5. 
Bankruptcy — debts contractcd after 

proceeding.-i, 874. 
Collision— négligence — sudden emer- 

gency, 792. 
Contract — co nstruction — plead Ing — 

araendment, 727. 
Customs duties — appraiser impeach- 

ing his own valuation, 408. 
Customs duties — woolen stockings, 

250. 

ADDISON BROWN, District .Judge, S. D. 
Admiralty practice — new trial — ap- 

peal, 527. 
Admimlty practice — jury trial — Rev. 

St. 5 366— verdict, 558. 
Bankruptcy — discharge — sale of 

property after pétition tilod. 94. 
Collision — steam-tug witli tow — duty 

of schooner becalmed, 788. 
Collision — hugging shore — rounding 

Battery — mutualfault — pleading — 

amendmenta, 551. 
Collision — river and harbor naviga- 
tion — signais — inspectora' rules — 

mutual fault, 529. 



York. 

Jurisdiction of fédéral courts— sepa- 
rate controversy, 803. 

Maritime lien — draft, 607. 

Patent — infringement — glove fast- 
ener, 805. 

Patent — non-claim of apparent de- 
vice— abandonment, 641. 

Patent — utility — assignability of li- 
cense, 323. 

Shipping — retaining vessel by ship- 
keeper, 799. 



New York. 

Collision — négligence — burden of 

proof — custom — Une aeross chan- 

nel, 453. 
Collision — anchored vessel — ringing 

beU — snow, 449. 
Collision — old boats — repairs — costs 

— excessive damages, 141. 
Collision — Erie canal — suction — ca- 
nal régulations, 111. 
Collision — tort — answer — négligence 

— inspectors' rules, 119. 
Customs duties — moiety — act of June 

22, 1874— suit m personatn, 893. 



UNITED STATES OIROUITS. 



A.DDISON BROWN, continued. 

Demurrage — bill of lading — readiness 

to discharge, 525. 
Demurrage — reasonable time — 

change of berlh — custom, 136. 
Guaranty — considération — assign- 

ment of mortgage — bankruptcy, 

732. 
Patent — false stamping — penalty — 

complaint — demurrer, 501, 507. 
Salvage — vessel and cargo — appor- 

tionment — average bond, 795. 
Seamen — shipping articles — évidence 

528. 
Beamen — shipping articles — dis- 
charge — extra wages, 523. 
Beamen's wages — advance note — dis- 
charge, 521. 
Beamen's wages — fines — shipping act 

of Great Britain — shipping articles 

— summary proceedings, 139. 
Shipping — stowage — damage to 

cargo — master's authority to sell — 

bill of lading — évidence, 636. 

CHARLES L. BENEDIOT, District Judre 
Admiralty practice — propounding in- 

terrogatories, 224. 
Admiralty practice — stenographer's 

fées on trial — 'when taxed, 847. 
Collision — claim of salvage by vessel 

in fault, 844. 
Collision — canal-boat and propeller 

— contributory négligence, 880. 
Collision — rules of the road — burden 

of proof, 797. 
Contract — permission to extraot 

guano, 798. 
Damage to canal-boat by suction and 

surge caused by ferry-boat, 841, 
Liability of canaî-boat for damage by 

steamers careening, 223. 
Patent — interférence — plea ia bar, 

817. 

HOYT H. WHEELER, District Judge, Vermont. 



Bhipping— obstructlng navigation — 
rope across channel — damage — 
proximate cause, 455. 

Shipping — lien for freight — contract 
to take on board wire cable — pri- 
vate agreeraent between manufac- 
turer and owner, 444. 

Bhipping — supplies — ^maritime lien — 
mortgage — priority, 219. 

Bhipping — assignment of bill of lad- 
ing — charter-party — demurrage, 
143. 

Bhipping — bill of lading — bona Jide 
indorser — freight — charter-party, 
123. 

Shipping — lex loci — Insurance — ^bill of 
lading — stowage — injury to goods 
— seaworthiness — custom — liability 
of ship-ovi^ner, 101. 

Shipping — through bill of lading — 
Insurance — construction — transfer 
of goods, 115. 

, E. D. New York. 
Kemoval of cause — jurisdictlon ol 

State court — émotion for security of 

costs, 802. 
Salvage — amount, 923. 
Balvage — compensation — costs, 221. 
Balvage service — awaid— costs, 918. 
Seamen — contract to send home — 

damages, 924. 
Bhipping — delivery — perishable 

cargo — bill of lading — négligence, 

875. 
Shipping — damage to cargo — bill of 

lading — advances, 877. 
Bhip's husband — lien — sale of vessel 

— exceptions to libel, 843. 
Bupervisors of élections — accounts, 



Contract — construction — dépendent 

and indépendant stipulation, 283. 
Corporation — bill bj- stockholder — 

majority rule — excess of authority, 

283. 
Patent — patentability — calculation — 

experiment — mechanical s k i 1 1 — 

public use, 99. 
Patent — reissue, 263. 
Patent — previous description, 307. 
Patent — reissue, 308. 
Patent — reissue, 311. 
Patent — infringement — cake-pans, 

312. 



Patent — suspension of injunction-- 

public interest, 313. 
Patent — preliminary injunction, 419. 
Patent — infringement — reissue, 315. 
Patent — reissue — inf ringement— dis- 

cl aimer, 823. 
Patent — infringement — license — ^ju- 

risdiction, 825. 
Patent — infringement by corporation 

— Personal liability of président, 

826. 
Trust— revocation, 677. 



n CNITED STATES OIBOUITS. 



THIRD CIRCUIT. 

JOSEPH P. BRADLEY, Associatb Justick of thb SaPBBMK CîoirBT. 

WILLIAM McKENNAN, Circuit Judqe. 

Collision — vessels meeting iû narrow Trust — paroi agreement reapecting 

ehannel — crossing courses, 213. lanii — bankrupt act — adverse inter- 

Internal revenue — notes used for cir- est —limitation — witness — action 

culation, 401. by or against executor — equity — 

Patent — infringement, 417. pleading, 286. 

B Q. BRADFORD, District Judgb, Delawarb. 

JOHN T. NIXON, District Judgb, New Jerse?. 

Abatement of suit by death — foreign Patent — injunction — contempt — 

adminisirator — Kev. St. i 955. agreement — deoree, 98. 

Action on judgment obtained.by Patent — anticipation — public use — 

fraud in another state, 488. infringement, 205. 

Collusive suit — plea in abatement— Patent — infringement — foreign In- 

evidence — injunction, 153. vention, 744. 

Conditional sale — attachment — con- Seamen — désertion — discharge — re- 

flict of lavvs, 760. covery of wages, 332. 
Maritime lien — captain of vessel — 

pleadings — amendment, 463. 

WILLIAM BUTLER, District Judgb, B. D. Pennstltastia. 

Bankruptcy — équitable assignment Négligence — explosion of boiler — ^lia- 

— subrogation — construction of bility of p u b 1 i c insptctors — evi- 

statutes, 88. dence — insurers, 246. 

Collusion — floating barge and sail- Patent — license — sale tosatisfyjudg- 

ing vessel — duty in narrow Chanel, ment, 619. 
335. 

MARCUS W. ACHESON, District Judgb, W. D. PasrersTLVANiA. 

Copyright — infringement — text- Municipal corporation — remedy for 

books — key for use of teachcrs — damage caused by unreasonable or- 

injunction, 325. dinance, 231. 

Patent — death of patentée — con- Wharves — right to moor vessels — po- 

struction of patent, 913. sition of steam-boat — collision with 

Patent— piiddlingfurnace—infringe- tovv— mutual fault, 328. 

ment, 915. 

FOURTH CIRCUIT. 

MORRISON R. WAITE, Chiep Justice op thb Suprbmb Court. 

HUGH L. BOND, Circuit Judqb. 

THOMAS J. MORRIS, District Judqb, Martiand. 

Carrier of goods— destruction by flre Bhipment of cattle — unflt drinklng 

bill of lading, 56. water — liability of vesaul, 131. 

Patent — combination — patentability, 
260. 

AUGUSTUS B. SEYMOUR, District Judge, E. D. Noeth Carolina. 

Clerk of court — pajrment to — judgment — order of court — commissions, 204. 

ROBERT P. DICK, District Judgb, W. D. North Carolina. 

Marshall — powers and duties as to tency — rescission of contract.— 
precepts — expiration of term, 586. breach — violation of contldenoe — 

Master and servant — monthly salary wrongful discharge — damage, 59. 
— false représentations — incompe- 

GBORGE S. BRYAN, District Judge, South Carolina. 



DNITBD STATES OIBOUITS< VU 

K. W. HUGHES, DiSTBiCT Judgh, B. D. Vikqinu.. 

Admiralty practice — libel — amend- Public statutes — constructive notice 

. ment y- action for death caused by — act of congress — statuts of limit- 

negligenoe — contributory negli- ations, 614. 

gence, 430. Salvage service— award, 436. 
Government — limitations — lâches of 
agents — specitie performance — 
damages — cloud on title, 609. 

JOHN PAUL, District Judge, W. D. Virginia. 

JOHN J.. JAOKSON, District Judob, West ViRaïuiA. 

Criminal law — provincf of jury — indictment — manslaughter— collision — Tio- 
latiou of navigation laws, 633. 



FIFTH CIRCUIT. 

WILLIAM B. WOODS, Associatb Justice of the Suprbmb Coubt. 

DON A. FARDEE, Circuit Jddge. 

Admiralty appeal — bond — parties — Bquity — intervention — injunction— 

amendment of process, 460. trust fund, 659. 

Admiralty jurisdiction, 461. Bquity jurisdiction — injunction, 855. 

Arbitration — oontract, 731. Habean corTJMs— jurisdiction — Rev. 8t. 

Assignment for benefit of créditera, 753, 631. 

719, 721, 722. Practice— appeal— r«w»«i«Mr. 330. 

Cliarter-party — bill of lading, 216. Prescription — pledge — act of Louisi- 

Ciiarter-party— demurrage, 459. ana. No. 73, of 1872, 870. 

Contracts — lease, 863. Balvage — costs, 651. 
Equity — demurrer — reheari ng — re- 

ceiver, 858. 

JOHN BRUCE, District Judge, 8., M., and N. D. Alabama. 

Maritime lien — vessels— dredge and scow, 544. 

THOMAS SETTLE, District Judob, N. D. Florida. 

JAMES W. LOCKE, District Judge, S. D. Florida. 

H. K. McCAY, District Judge, N. D. Georgia. 

JOHN ERSKINB, District Judge, S. D. Georgia. 

EDWARD C. BILLINQ8, District Judge, E. D. Louisiana. 

Admiralty practice — joinder of par- Equity practice — verbal agreements 

ties, 653. of counsel, 676. 

Admiralty practice — amendments — Injunction — criminal proceedings, 

rule No. 24, 655. 671. 

Contempt — violation of injunction, Insolvency — lawsof Louisiana, 191. 

678. 

ALBCK BOARMAN, District Judge, W. D. Louisiana. 

Removal of cause — separable controversy — intei-venor, 227. 
ROBERT A. HILL, District Judge, N. and S. D. Mississippi. 

Assignment by insolvent— validity — Receiver — torts of employés — pro- 

burden of proof , 714. ceeding in rem — discharge of re- 

Misjoinder of causes of action — ^joint ceivér — claim for personal injuries, 

and several liability, 630. 477. 

Patent — contract to assign — spécifie 
performance — ^jurisdiction, 647. 

AMOS MORRILL, District Judge, E. D. Texas. 

A. P. McCORMICK, District Judge, N. D. Texas. -. 



VIU UNITED STATES OIBOUITS. 

B. B. TURNER, District Judgb, W. D. Texas. 

False account — évidence — agency, Promissory note — transfer to one 

593. partner — payment to another, 578. 

Municipal bonds — power conferred 

by municipal charter, 483. 



SIXTH CIRCUIT. 

STANLEY MATTHEW8, Associatb Justicb of thb Suprême Court. 
JOHN BAXTER, Circuit Judge. 

Railroads — législative control— vested rigbts, 679, 
JOHN WATSON BARR, District Judge, JKentuckt. 

Removal of cause — pétition — ^jurisdiction — separate controversy — ^parties— 
défendant corporation, 51. 

HENRY B. BROWN, District Judge, E. D. Michigan. 

Collision — propeller and tug — signais Towage — choice of route — master's 

— fault, 765. discrétion — refusai to cross lake— 

Collision — vessel at anchor — fault — intoxication of master — abandon- 

St. Clair river — inscrutable fault, ment of tow — gênerai average, 264. 

836. 
Maritime lien — enforcing — bona fide 

purchaser, 782. 

80L0M0N J. WITHEY, District Judos, W. D. Michigan. 
MARTIN WELKER, District Judge, N. D. Ohio. 
G. R. SAGE, District Judge, S. D. Omo. 

Taxation — national bank shares — United States bonds, 372. 
D. M. KEY, District Judge, E. and M. D. Tennessee. 

Removal of cause — citizenship — sep- certain party — taxation — jurisdic- 

arate controversy, 150. tion — removal of cause, 156. 

Public use — private park — contract Taxation — assessment of railroad 
to exclude persons not brought by property — constitutional law, 398. 

B. S. HAMMOND, District Judge, W. D. Tennessee. 

Cotton exchange — rules and régula- Removal of cause — repleading — ^uni- 
tiens — construction — loss by fire, formity in practice — Rev. St. } 639 
619. — act of March 3, 1875 — pleading 

Interstate commerce — state régula- under Tennessee Code, 273. 
tion of railroads, 679. ' 



SEVENTH CIRCUIT. 

JOHN M. HARLAN, Associate Justice of thb Suprême Court. 
THOMAS DRUMMOND, Circuit .Tudgb. 

Removal of cause — separate controversy, 465. 
HENRY W. BLODQETT, District Judge, N. D. Illinois. 

Collision — navigation laws — speed — Life insurance — policy — ^lapseby col- 
evidence — damages, 771. lusion — policy in favor of assured, 

Copyright — infringement — pleading, 671. 

758. Maritime lien — assignment of debt, 

Customs duties — silk and cotton 879. 

shawls, 417. Patent — public use — infringement, 

Customs duties — stéarine, 416. 735. 

Customs duties — taft'eta gloves, 413. Sending matter concerning lotteriea 
Customs duties — tire blooms — steel through the mail, 39. 

partly manufactured, 412. Statute — mistake — title — custouu 

Customs duties — watch enamel, 411. duties, 304. 



UNITED STATES OIBOUITS. 



U 



8A.MUEL H. TRBAT, District Jud&h, 8. 

WILLIAM A. WOODS, Disteict Judgb, 

Bankruptcy — fraudulent conveyance 

— judgment — liens — asaienee, 689. 

Jurisdiction of United States courts 

— hovv afEected by state laws, 657. 

CHAULES E. DYER, District Judge, B 
Public lands — entry — right to eut 
j timber, 910. 

ROMANZO BUNN, District Judge, W. 

Assignraent for benefit of creditors — 

unlawful préférence — action on de- 

maudnotdue — Wisconsin Staïutes, 

295. 



D. iLIiINOIB, 

Indiana. 

Pat ent — accounting — damages — évi- 
dence — liceflse — royalty, 830. 

Patent — construction — license — 
damages — record of patent, 514. 

, D. WiscoNsm. 

Surety — altération of instrument — 
internai revenue, 567. 

D. WiscoNsra. 

Fédéral practice — process — ^garnish- 
ment — summons — amendment, 252. 
Jurisdiction — citizenship, 155. 



EIGHTH CIRCUIT. 



Railroad mortgage — foreclosure — ap- 

praisement — receiver, 173. 
Removal of cause — garnishment un- 

der statute of Minnesota, 49. 
Spécifie performance — award — rea- 

sonable time — en tire tract to be ap- 

praised, 5. 



SAMUEL P. MILLER, Associatb Justice of thk Suprême Court. 

GEORGE W. McCRARY, Circuit Judgb. 
Contributory négligence — sudden 

f right — injury causing death — 

damages, 83. 
Income l ax — corporations — period 

from August 1, 1870, to January 1, 

1871 — action to recover taxes, 66 
Mailing obscène publication — indict- 

ment, 497. 

HENRY C. CALDWELL, District Judgb, E. D. Arkansas. 

Con tract — stipulated damages for f allure to perform — delay — good faith — 
assuming risks — construction — province of jury — waiver — extension of 
time, 239. 

I8AAC C. PARKER, District Judge, W. D. Arkansas. 

O. P. SHIRAS, District Judgb, N. D. Iowa. 

Removal of cause — action by as- Taxation — railroad bridge— Statutes 
signée, 225. of Iowa, 177. 

JAMES M. LOVE, District Judgb, S. D. Iowa. 

0. G. POSTER, District Judge, Kansas. 

RENSSELAER R. NELSON, District Judgb, Minnesota. 



Assignment for beneflt of creditors — 

possession of assignée — attach- 

ment, 406. 
Counsel fées — law of Ontario — bill of 

exchange, 87. 
Marine Insurance — description of 

vessel, 24. 

SAMUEL TREAT, District Judge, E. D. 
Commission merchants — advances — 

bill of lading — Insurance, 198. 
Constitutional law — taxation to aid 

private enterprise, 871. 
Dépositions — certificales — amend- 

raents, 863. 
Insurance — mutual association pol- 

icy — contract as to enforcement, 

20L 



Offlcers — double compensation — In- 

dian agent, 807. 
Practice — new trial, 490. 
Removal of cause — practice — issue, 

885. 



Missouri. 
Joinder of parties — corporations — 

jurisdiction — removal of cause, 152. 
Patc!nt for process — infringement, 96. 
Receiver — liens on property, 861. 
Removal of cause — citizenship, 849. 
Hesulting trust — oral agreement — 

parties, 849. 



X 



UNITED STATES CIRCUIT?. 



ARNOLD KREKEL, District Jodge, W. D. Missouhi. 

Attachmeots — statutes of Missouri — Life Insurance — policy for beneflt of 
assignments — fraudoncredltorB,70. creditors — proof of death, 68. 

ELMER S. DUKDY, Bistrict Judgb, Nebraska.. 

M0SE8 HALLETT, District Judge, Colorado. 

Mines and mining — location — end stakes— change of lines — aliens, 78. 



NINTH CIRCUIT. 



8TEPHEN J. FIELD, Assooiatb Justice of thb Suprême Coitbt. 

LORENZO SAWYER, Circuit Judob. 
Chinese immigration — aot of May 6, 

1882 — certilicate of pievious rcsi- 

dence, 490. 
Custoras duties — grain bags — re-en- 

try free of duty — power of secre- 

tary, 578. 
Fugitives from justice — haheas a/i'pus 

—duty of custodian— production of 

prisoner — jurisdiction, 26. 
Jurisdiction of fédéral court — pend- 

ency of cause in state court, 340. 



Municipal bonds — Sacramento City— 
statute — waiver of constitutiOnal 
riglit, 630. 

Navigable rivers — unsettled question 
of state and fédéral powers, 562. 

Patent — combination of separate de- 
vices — subcombination, 424. 

Patent — reissue — décision of pateat- 
offlee — equity pleadihg, 509. 

Reraoval of cause — application — 
amendment — "session" and 
"lerm,"881. 

OQDEN HOFFMAN, District .Judge, California. 

Chinese immigration — custom-house Perjury— procuring commission of — 
certiflcates — merchants — cliildren, éléments of crime — knowledge, 912. 
185. 

GEORGE M. 8ABIN, District Judgb, Nevada. 

Jurisdiction — foreclosure of meclianic's lien — suit by assignée — averment as 
to citizenship- act of March 3, 1875, 1. 



MATTHEW P. DEADY, District Judge, 

Agent adversely interested to princi- 
pal — suit to reform contract, 15. 

Deed — considération — seal, 291. 

Equify practice — navigable waters — 
jurisdiction ot' circuit court, 347. 

Express facilities — contempt of in- 
junction, 20. 

Multiplicity of suits — state statute 
involving fédéral question — im- 
pairing obligation of contract — 
taxation — due process of lav?, 359. 



Oregon. 

Obstructing passage of mail — passen- 
ger on train, 42. 

Patent— revolving dip-net, 643. 

Pilotage— ofîer by signal — signal for 
olïer — "state" includes " terri - 
tory," 207. 

Practice — spécial appearance — serv- 
ice on corporation — action for 
death, 254. 

Balvage by pilot, 603. 



CASES REPORTED. 



Page 

Adams v. Howard 317 

Adams, Mulville v 887 

Alabama, The 544 

Albright v. Oyster 849 

Alexandria, City of, United States v. 609 
Alexandria, City of , United States v. 614 

Alicia A. Washl;urn, The 788 

Aline, TJie 875 

Allen, ïn re 809 

AUison V. Ohapman 488 

Alps, The 139 

American Eaglo, The 879 

American Printing Co. , Rayer & Lin- 
coln 8. M. Co. v 428 

American K. Bridge Ce, Cardwell v. 562 

Andersen, Judge v 885 

Arthur, Vietor v 250 

Ashland, The 336 

Ashland, The 651 

Ashuelot Sav. Bank v. Froat 237 

Astrup V. Lewjr 536 

Aulïmordt, United States v 893 

Aultman v. Thompson 490 

Baker v. Loring 127 

Baker 8alvage Co v. The Excelsior. 436 

Baldwin, BVelinghuj'sen v 49 

Baldwin, Martin v 340 

Balfour v. Sullivan 578 

Baltimore, C. & lî. Steam-boat Co., 

Scott V 56 

Baltimore, C. & R. Steam-boat Co., 

Odell V '.... 56 

Baltimore, 0. «& R. Steam-boat Co., 

Purcell V 66 

Baltimore & O. Tel. Ce, Western U. 

Tel, Co. V 660 

Bank of the Metropolis v. First Nat. 

Bank 301 

Barlow v. Loomis 677 

Barney, Green v 420 

Bartlett v. His Impérial Majeaty, etc. 346 

Bauer, Heller v 96 

B. B. Saundera, The, (two cases,)... 118 

Bellv. Noonan 225 

Bell V. U. S. Stamping Co 312 

Belle of Oregon, The 924 

Bemis & Call Hardware & Tool Co. , 

Tower v 498 

Benedict v. St. Joseph & W. R. Co. . 173 
Berlin & Jones En velope Co,, Reay v. 311 
V.19— Fkd. 



Page 
Berry v. Bawyer 286 

B. K. Waahburn, The 788 

Blair v. St. Louis, H. & K. R. Co. . . 861 

Blake V. Hawkins 204 

Blowers v. One Wire Rope Cable.. . 444 
Boston & Fairhaven Iron Works, 

Child V 258 

Boston & L. R Corp., JS^ashua & L. 

R. Corp. V ., , . 804 

Boyd V. QUI 145 

Bradley V. Dull 913 

Bradiey v. Hartford Steam-boller I. 

& 1ns. Co 246 

Bradley v .Kroft. 296 

Brainard v. Evening Post Ass'n .... 422 
Brassey v. New York & N. E. R. Co. 663 
Brooklyn By. Supply Co., McAr- 

thurv 263 

Brooks, Gloucester Isinglass & Glue 

Co. V ^ 426 

Brown v. Francis 678 

Brown v. Lee 630 

Brown, Mowat v 87 

Bruce v. Manchester & K. R. R 342 

Buchanan v. Northern Pac. Ry. Co. 254 

Burns v. The Spain 880 

Butler, J. W., Paper Co., Chicago 

Music Co. V 758 

Cahn V. Wong Town On _ 424 

Canada Cent. R. Co., Phelps v 801 

Cardwell v. Amer. R. Br. Co 562 

CarroU, Stadler v 721 

Carter v. City of New Orléans 659 

C. D. Bryant, The 603 

Centennial Mut. L. Ass'n, Eggles- 

ton V 201 

Central R. Co. , Dinsmore v 153 

Chapman, Allison v 488 

Charley A. Reed, The 111 

Charlotte "Vanderbilt, The 219 

Chas. E. Soper, The 844 

Ohesman, U nited Statea v 497 

Chicago Music Co. v. J. W. Butler 

Paper Co 758 

Chicago, M. & St. P. Ry. Co. v. City 

of Sabula 177 

Chicago, M. & St. P. Ry. Co. v. 

Stewart 6 

Chicago Tire & Spring Works Co. v. 

Spaulding 412 

(xi) 



xu 



OABëS BEPOIiTEO. 



Page 
Ohild V. Boston & Fairhaven I. 

Works 258 

Chotard, Freidler v 227 

Cincinnati S. Ey., Trustées of, v. 

Guenther 395 

City of Bâton Rouge, The 461 

City of Lincoln, Tlie 460 

City of Troy, The 111 

Claflin, Tuttle V 599 

Clarendon, Borough of, Torpédo 

Co. V 231 

Clews, Nott V 145 

C. N. Johnson, The 7s2 

Coghlan V. Stetson 727 

Cole v.,City of La Grange 871 

Colgate V. Western U. TeL Co 828 

Colina, The 131 

Collins V. Davidson 83 

Col. Adams, The 795 

Colorado Land & Minerai Ce, Crœ- 

susM.,M. &S. Co. V 78 

Cooke, In re 89 

Corozal, The 655 

Coughlin V. The Rheola 926 

Crédit Lyonnais, The 123 

Crœsus M., M. & 8. Co. v. Colo. L. 

& Minerai Co 78 

Croswcll V. Mercantile Mut. 1ns. Co. 24 

Curtis Park, The 797 

Cutter V. Wbittier 145 

Daniel Steinman, The 918 

Dauntless, The 798 

Davidson, Collins v 83 

Davis V. Duncan 477 

Davis V. JTredericks 99 

Davis v. Smith 823 

Dennis, Perkins v 145 

Dennis, J. W., The 799 

Desmond v. City of Jefferson 483 

Dillard v. Paton 619 

Dills, Hull v 657 

Dinsmore v. Central R. Co 153 

Donahue v. RoLierts 863 

Doty V. Jewett 337 

Dow, Memphis & L. R. R. Co. v. . . . 388 

Doyle v. Spaulding 744 

Dryfoos v. Wiese 315 

Duke V. Graham 647 

Dull, Bradley V 913 

Duncan v. Shaw 521 

Duncan, Davis v 477 

Dundee Mort., T. I. Co. v. School- 

dist. No. 1 359 

Durant, Hazard v., (tvfo cases,) 471 

East Tenn., V. & G. R. Co. v. R. R. 

Corn, of Tenn 679 

Echo, The 453 

Eggleston v. Centennial Mut. L. 

Ass'n 201 

Elgin Watch Co. v. Spaulding 411 

Elkins Manuf'g & Gas Co., Kirk v.. 417 



Page 

Ella B., The 793 

Elvine, The 628 

Empire, The 558 

Estes V. Spain 714 

Evans v. State Nat. Bank 676 

Evans, United States v 912 

Evening Post Ass'n, Brainard v. . . . 422 
Excellenzen Sibbern, The, Lewy v.. 536 
Excelsior, The, Baker Salvage Co. v. 436 
Exchange Nat. Bank v. Miller 372 

Pairbanks v. Spaulding 416 

Ferry v. Town of Westtield 155 

Pield v. Ireland 835 

Pirst Nat. Bar-k, Bank of the Me- 

troplis V 301 

Fish-wheel Case, The 643 

Pisk, Fogg V 235 

Fitzpatrick, Hendryx v 810 

Plagier, Plagier Engraving Mach. 

Co. V., (two cases,) 468 

Plagier Engraving Mach. Co. v. 

Plagier, (two cases,) 468 

Pletcher V. New Orléans & N. E. R. 

Co 731 

Pogg V. Fisk 235 

Francis, Brown v 678 

Francis, Spink v , 670, 678 

Francis, AVilliams v 670 

Frank C. Barker, The 332 

Prazier, Nicodemus v 260 

Frederieks, Davis v 99 

Freidler v. Chotard 227 

Frelinghuysen v. Baldwin 49 

Frost, Ashuelot Sav. Bank v 237 

Fryer v. Maurer 756 

Qarden City, The 529 

Geiser, The 877 

Giant Powder Co. v. Safety Nitro 

Powder Co 509 

Gibbs v.Hoefner 323 

Giles, Scobel v 224 

Gill, Bovd V 145 

Globe Nail Co. v. U. S. Horse Nail 

Co., (two cases) 819 

Gloucester Isinglass & Glue Co. v. 

Brooks 426 

Gold & Stock Tel. Co. v. Pearce 419 

Gove V. Judson 523 

Graham, Duke v 647 

Green v. Barney 420 

Green, Matthews v 649 

Gronn v. Woodrufl 143 

Guenther, Trustées of the Cin. B. 

Ry. V 395 

Halkyard, Smith v 602 

Hall V. City of New Orléans 870 

flall, Munson v 320 

Hampton v. Truckee Canal Co 1 

Hartford, etc., 1ns. Co., Bradlev v.. 246 
Hartford, P. & F. R. Co , Mason v. . 53 



CASES REPORTED. 



XIU 



Page 
Hatch, Wallamet Iron Bridge Co. v. 347 

Hawkins, Blake v 204 

Hazard v. Durant, (two cases,) 471 

Headley, Roemer V 205 

Hellerv. Bauer 96 

Hendryx v. Fitzpatrick 810 

Hicksv. Otto 749 

Himmer, Time Tel. Co. v 322 

Hoefner, Gibbs v 323 

HoUiday, Keed v 325 

Home Mut. Ins. Co., 8pare v 14 

Hoiige V. WoodrufiE 136 

Howard, Adams v 317 

Howland Coal & 1. Works, Well- 

inan v 51 

Hull V. Dills 657 

Illingworth v. Bpaulding 744 

Imogene M. Terry, Tlic 463 

Ireland, Ficld v 835 

Iron-clad Manuf'g Co., Matthews v. 321 

James P. Donaldsoa, The 264 

Jay Cooke& Co., In re is8 

Jay Gould, Tlie 765 

Jeflerson, City of, Uesmond v 483 

Jenks, Swift v 641 

Jeanie B. Gilkey, The 127 

Jersey City, First Nat. Bank of , Bank 

of Metrop. v 301 

lessup, In re 94 

Jewett, Dotyv ..... 337 

Jolinson, C. N , The 782 

-lones V. Vestry of Trinity Parish. . . 59 

Jones, Nlchols v 855 

Joseph W. Gould, The 785 

Judge V. Anderson 885 

Judson, Gove v 523 

J. W- Butler Paper Co., Chicago 

Music Co. V , 758 

J. W. Dennis, The 799 

Kane, United States v 42 

Kehlor, Kufeke v 198 

Keller, United States v 633 

Kellog V. Richardson 70 

Kennedy v. City of Sacramento 580 

Kirby, Pentlarge v., (three cases,). .. 601 
Kirby Bung Manuf'g Co. , Pentlarge • 

V,, (three cases,) 501 

Kirk V, Elkins Manuf'g & Gas Co. . . 417 

Kroft, Bradley v 295 

Kroplï V. Poth 200 

Kufeke v. Kehlor 198 

La Grange, City of , Cole v 871 

La Grange, City of , Sanford v 871 

Lahaina, The 923 

Lake Shore & M. S. Ry., Sirapkins v. 802 

Lane, United States v 910 

Lapp V. Van Norman 406 

Lawnsdale, West Portland Home- 

stead Ass'n v 291 



Page 

Leahy v. Spaulding 417 

Lee, Brown v 630 

Leland, The 771 

Léo V. Union Pac. Ky. Co 283 

Léonard v. Whitwill 547 

Leong y ick Dew, In re 490 

Letchworth, In re 873 

Lewy, Astrup v 536 

Lewy V. Tliu ExceDenzen Sibbern... 636 

Lloj'd V. Miller 915 

Loomis, Barlo w v 677 

Loring, Baker v 127 

Louchheim, Pollok v 465 

LouisvJlle & N. R. Co. v. R. R. Com. 

of Tenn 679 

Louisville & Nasbvilie R. Co., War- 

ing V 863 

Lowe, In re 689 

Luckenbaek, The B 847 

Lung Chung v. Northern Pac. Ry. 

Co 254 

Lyman v. Maypole 735 

MacNaughton v. South. Pac. C. R. 

Co 881 

MaggieEllen, The 221 

Malvin V. Wert 721 

Manchester & K. R. R., Bruce v. . . . 342 

Manhasset, The 430 

Marble,Vermont Farm. Mach. Co. v. 307 

Marina, The 760 

Marlor v. Texas & P. Ry. Co 867 

Martin v. Baldwin 340 

Maryland, The 551 

Mason v. Hartford, P. & P. R. Co. . 53 

Matthews v. Qreen. 649 

Matthews v. Iron-clad Manuf'g Co.. 321 

Matthews v. Spangenberg 823 

Maurer, Fr3'er v 756 

Mayor, etc., of New York, Mun- 

son V 313 

Maypole, Lyman v 736 

McArthur v. Brooklyn Ry. Supply 

Co 263 

McCord, Williams v 643 

Memphis,C.&N.W. Ry.Co.,Wal8erv. 152 
Memphis & L. R. R. Co. v, Dow. ... 388 
Memphis & Ohio R. Pkt. Co., Whit- 

tenton Manuf'g Co. v 273 

Mentz, Town of, Rich v 725 

Mercantile Mut. Ins. Co., Croswell v. 24 
Mercantile Mut. Ins. Co., Red Wing 

Mills V 115 

Merrell, In re 874 

Merriam, Searls v 815 

Merritt, Oelberman v 408 

Middleton Paper Co. v. Rock R. Pa- 
per Co 252 

Miller, Exchange Nat. Bank y 372 

Miller, Lloyd v 915 

Mississippi Mills Co. v. Ranlett 191 

Missouri River, F. S. & G. R. Co. v. 

United States 66 



XIV 



0ÀSE8 BBPOBTëO. 



Page 

Moody, rjewman v 858 

Moore V. North River Const. Co. . . . 803 

Moore, Onitéd States v 39 

Morgan v. Rogers 596 

Mosher v. Bt. Louis, 1. M. & S. Ry. 

Co 84a 

Mowat V. Brown 87 

Muller y. Norton 719 

Mulville V. Adams 887 

Munson v. Hall 320 

MuDSOn V. Mayor, etc., of New Yorli 313 
Muskegon Na"t. Banli . N. W. Mut. 

L. Ins. Co 405 

Nashua & L. R. Corp. v. Boston & 

L. R. Corp 804 

National Car-brake Shoe Co. v. Terre 

Haute Car, etc., Co 514 

National Tel. Co., Western U. Tel. 

Co. V , 561 

New Bedford, City of, Sliaw Relief 

Valve Co. V 753 

New Hampshire Land Co. v. Tilton. 73 

New Orléans, City of, C-irler v 659 

New Orléans, City of, Hall v 870 

New Orléans & N. E. R, Co., 

Fletcher v 731 

New York & N. E. R. Co., Brassey 

v 663 

Newman v. Moody 858 

Newman, Koemer v 98 

Nichols V. Jones 855 

Nicodemus v. Frazier 260 

Noonan, Bell v. 225 

North Ri V. Const. Co. , Moore v. . . . . 803 
Northern l'ac. Ry. Co , Buchanan v. 254 
Northern Pac. Ry. Co., Lung Chung 

V 254 

Northwestern Mut. L. Ins. Co., Mus- 
kegon ]S at. Bank v 405 

Norton, Muller v 719 

Nott v. Clewa 145 

Odell v. Baltimore, C. & R. Steam- 

boat Co 56 

Oelberinan v. Merritt 408 

Oluf, The 459 

One Block of Marble, Ray v 525 

One Wire Rope Cable, BÏovvers v. . . 444 

O'Neill, United States v 567 

Ontonagon, The 800 

Oregon Ry. & Nav. Co., Wells, Fargo 

& Co. V 20 

Osseo, The 844 

Otto, Hicks V 749 

Oyster. Albright v 849 

Pacific Mut. L. Ins. Co , Sensender- 

f er v 68 

Paton, Dillnrd v 619 

Pearce, Gold & Stock Tel. Co. v. . . . 419 

Peer of the Realm, The 216 

Pegasus, The 46 

Pentlarge v. Kirby, (three cases,) .. . 601 



Page 
Pentlarge v. Kirby Bung Manuf'g 

Co., (three cases,) , 501 

Pentlarge v. Pentlarge 817 

Perkins v. Dennis 145 

Phelps V. Canada Cent. R. Co 801 

Philadelphia & R. R. Co. v. Fullock 401 
Pollock, Philadelphia & R. R. Co. v. 401 

Pollok V. Louchhoim 465 

Ponça, The 223 

Poole V. Thatcherdeft 49 

Poth, Kroptï V 200 

Pride of America, The 607 

Prinz Georg, The 653 

P. Smith, The 551 

Purcell V. Baltimore, C. & R. Steam- 

boat Co 56 

Quaker City, The 141 

Querini Stamphalia, The 123 

Railroad Com. of Tenn , East Tenn., 

V. & G. R. Co. V 679 

Railroad Com. of Tenn., Louisville 

&N. R. Co. V 679 

Ranlett, Mississippi Mills Co. v 191 

Ray V. One Block of Marble 526 

Rayer & Lincoln Seaming-Mach Co. 

V. Amer. Pr. Co 428 

Raynor, Reay v 308 

Reay v. Berlin & Jones Euvelope Co. 311 

Reay v. Raynor 308 

Red Wing Mills v. Mercantile Mut. 

Ins. Co 115 

Reed v. Xlolliday 326 

Rheola, The 926 

Rheola, The, Coutrhlin v 926 

Rich v. Town of Mentz 725 

Richardson, Kellog v 70 

Robb, In re 26 

Roberts, Donubue v 863 

Rock River Paper Co., Jliddlelon 

Paper Co. v 252 

Rookaway , The 449 

Roemer v. 11c,k1 ley 205 

Rocraer v. Newman 98 

Rogers, Morgan v 596 

Rose v. Stephena & Condit Trnnsp. 

Co 808 

Rude, AVestcott v 830 

Russell, United States v 591 

Russell Sage, The 792 

Rust, Texas & Bt. L. Ry. Co. v 239 

Sabula, Citv of, Chicago, M. & St. P. 

Ry. Co. V 177 

Sacramento, City of, Kennedy v. . . . 580 
Safety Nitro Powder Co., Giant 

Powder Co. v S09 

St. Joseph & W. R. Co., Benedict v. 173 

St. Lawrence, The 328 

St. Louis, H. & K. R. Co. Blair v. . . 861 
St. Louis, I. M. & S. Ry. Co., Mo- 
sher v 849 



OASEB REPOBTED. 



XV 



Page 

Sally, The 335 

Sanford v. City of La Grahge 871 

Santiago de Cuba, The, v. The Bcots 

Greya 213 

Santiago de Cuba, The, The Scots 

Grreys v 213 

Sàwyer, Berry v ;... 286 

Schalscha v. Sutro 319 

School-dist. No. 1, Dundee Mortg., 

T. I. Co. V 359 

Schreyer, In re 732 

Scobel V. Giles 224 

Scots Greys, The, v. The Santiago de 

Cuba 213 

Scots Greys, The, The Santiago de 

Cubav 213 

Scott V. Baltimore, G. & R. Steam- 

boat Co 66 

Searls v. Merriam 815 

Sensenderfer v. Pac. Mut. L. Ins. Co. 68 

Sharp V. Whiteside. 1.^0 

Sharp V. Whiteside 156 

Sharp, Whiteside V. 150 

Sharp, Whiteside v 166 

Shaw, Buncan v 521 

Shaw Kelief Valve Co. v. City of 

Kew Bedford 753 

Simpkins v. Lake Shore & M. S. Ry. 802 

Smith V. Halkyard 602 

Smith V. Standard L. M. Co 825 

Smith V. Standard L. M. Co 826 

Smith, Davis V 823 

Smith, United States Dairy Co. v. . . 97 

Smith, P., The 651 

Snow, Winne v 607 

South. Pac. C. R. Ce, MacNaugh- 

ton V 881 

Southfield, The 841 

Spain, Estes v 714 

Spain, The, Burns v 880 

Spangenberg, Matthews v 823 

Spare v. Home Mut. Ins. Co 14 

Spaulding, Chicago Tire & Spring 

Worlis Co. v 412 

Spaulding,, Doyle v 744 

Spaulding, Elgin Watch Co. v 411 

Spaulding, Fairbanks v 416 

Spaulding, Illingworth v 744 

Spaulding, Leahy v 417 

Spaulding, Wilson v 304 

Spaulding, Wilson v 413 

Bpink V. Francis 670, 678 

Spink, United States ex rel 631 

Stadler v. Carrolt 721 

Standard L. Mach. Co., Smith v.... 825 

Standard L. M. Co., Smith v 826 

State Nat. Bank, Evans v 676 

Steere, Taft v 600 

Stephens & Condit Transp. Co., 

Rose V 808 

Stetson, Coghlan v 727 

Btevens, Union Mut. L. Ins. Co. v. . 671 
Stevenson 7. Woodhull Bros 575 



Pag» 
Stewart, Clilcago, M. & St. P. Ry. 

Co.v 6 

Stowe, United States v 807 

Sullivan, Balfourv 578 

Sultan of Turkey, Bartlett v 346 

Survivor, The 449 

Sutro, Schalscha v 319 

Swan, The 45S 

Swift V. Jenks 641 

Taft V. Steere 600 

Terre Haute Car & Manuf'g Co., 

Nat. Car-brake Shoe Co. v 614 

Texas & P. Ry. Co., Marier v 867 

Texas* St. L. Ry. Co. v. Rust 239 

Thatcherdef t, Poole v 49 

Thompson, Aultman v ., 490 

Tilton, New Hampshire Land Co. v. 73 

Time Tel. Co. v. Himmer 322 

Titanla, The, (two cases,) 101 

Torpédo Co. v. Borough of Claren- 

don 231 

Tower v. Bemis & Call Hardware & 

Tool Co 498 

To wn of Westfleld, Ferry v 156 

Triiiity Parish, Vestry of, Jones v.. 59 

Truckee Canal Co., Hampton v 1 

Tung Yeong, In re ,.. 184 

Tuttle V. Claflin 599 

Two Hundred and Ninety-two Thou- 
sand Three Hundred Dollars, 
Whitev 848 

Ullock, The 207 

Union Mut. L. Ins. Co. v. Stevens.. 671 

Union Pac. Ry. Co., Léo v 283 

United States v. Aulïmordt 893 

United States V. Chesman 497 

United States v. City of Alexandria. 609 
United States v. City of Alexandria. 614 

United States v. Evans 912 

United States v. Kane 42 

United States V. Keller 633 

United States v. Lane 910 

United States v. Moore 39 

United States v. O'Neill 667 

Uniled States v. RusseU 591 

United Statesv. Stowe 807 

United States v. White 723 

United States, Missouri River, F. B. 

&G. R. Co.v 66 

United States ex rel. Spink 631 

United States ex rel. Williams 631 

Uniled States Dairy Co. v. Smith. . . 97 
United States Horse Nail Co., Globe 

Nail Co. V. , (two cases,) 819 

United States Stamping Co., Bell v. 312 

Vaderland, The 527 

Van Norman, Lapp v 406 

Vermont Farm. Mach. Co. v. Marble. 807 
Vestry of Trinity Parish, Jones v. . . 69 
Victor v. Arthur 280 



XVI 



OABES BSFO£ï£D. 



Page 
Wallamet iron Bridge Co. v. Hatch. 347 
Walser v. Memphis, C. & N. W. Ry. 

Co 152 

Waring v. Louisville & N. B. Co. ... 863 

Washburn, B. K., The 788 

Washbura & Moen Manuf g Co. v. 

Wilson 233 

Wellman v. Howland Coal & Iron 

Works 51 

Wells, Fargo & Co. v. Oregou Ry. & 

Nav. Co 20 

Wert, Malvin v 721 

West Portland Homestead Ass'n v. 

Lawnsdale 291 

Westcotl V. Rude 880 

Western U.Tel. Co.v. B. & O.Tel. Co. 660 
Western U. Tel. Co. v. Nat. Tel. Co. 561 

Western U. Tel. Co. , Colgate v 828 

W^estfleld, Town of, Ferry v 155 

White V. Two Hundred and Ninety- 

two Thousand Three Hundred 

Dollars 848 

White, United States v 723 



Whiteside v. Sharp 150 

Whiteside v. Sharp 156 

Whiteside, Sharp v 150 

Whiteside, Sharp v 156 

Whittenton Manuf 'g Co. v. Memphis 

& O. R. Pkt. Co 273 

Whittier, Cutter v 145 

Whitwill, Léonard v 547 

Wiese, Dryf oos v 315 

Williams v. Francis 670 

Williams v. McCord 644 

Williams, United States ex rel 631 

Wilson V. Spaulding 304 

Wilson V. Spaulding 413 

Wilson, Washburn & Moen Manuf g 

Co. V 233 

Winne v. Snow 507 

Wong Town On, Cahn V 424 

WoodliuU Bros., Stevenson v 575 

WoodrufE, Gronn v 143 

Woodruff, Houge v 136 

Worley, Ex parte 586 

Worthington and Davis, The 836 



CASES REPORTED. 

ARRANGED UNDER THEIR RESPECTIVE CIRCUITS 
AND DISTRICTS. 



FIEST CIRCUIT. 



Page 



UiKCDiT CouKT, D. Massachusetts. 

American Printing Co., Rayer & Lin- 
coln 8. M. Co. V 428 

Baker v. Loring 127 

Barney, Green v 420 

Bemi3 & Call Hardware & Tool Co., 

Tower V 498 

Boston & Fairhaven Iron Works, 

Child V 258 

Boston & h. H Corp., Kashua & L. 

R. Corp. V 804 

Brooks, Gloucester Isinglass & Glue 

Co. V 426 

Child V. Boston & Fairhaven I. 

Works 258 

Davis V. Smith 823 

Durant, Hazard v., (two cases,) 471 

Fitzpatrick, Hendryx v 810 

Flagler, Plagier Engraving Mach. 

Co. V., (two cases,) 468 

Flagler Engraving Mach. Co. v. 

Flagler, (two cases,) 468 

Globe Nail Co. v. U. S. Horse Nail 

Co., (two cases), 819 

Gloucester Isinglass & Glue Co. v. 

Brooks 426 

Green v. Barney 420 

Hartford, P. & F. R. Co , Mason v. . 53 

Hazard V. Durant, (two cases,) 471 

Hendryx v. Fitzpatrick 810 

Jeonie B. Gilkey, The 127 

Loring, Baker v 127 

Mason v. Hartford, P. & P. R. Co. . 53 
Nashua & L. R. Corp. v. Boston & 

L. R. Corp 804 

New Bedford, City of, Shaw Relief 

Valve Co. V 753 

Rayer & Lincoln Seaming-Mach Co. 

v. Amer. Fr. Co 428 

Shaw Relief Valve Co. v. City of 

New Bedford.. 753 

Smith, Davisv 823 

V.19B^D.— b 



P»ge 

Tower v. Bemîa & Call Hardware & 
Tool Co 498 

United Btates Horse Nail Ce, Qlohe 
Nail Co. v. , (two cases,) 819 

Circuit Court, D. Nœw Haufshibb. 

Ashuelot Sav. Bank v. Frost 237 

Bruce v. Manchester & K, R. R 342 

Frost, Ashuelot 8av. Bank v 237 

Manchester & K. R. R., Bruce v. . . . 342 
New Harapshire Land Co. v. Tilton. 73 
Tilton, New Hampshire Land Co. v. 73 

Circuit Court, D. Rhcdb Islahd. 

Halkyard, Smith v 602 

Morgan v. Rogers 596 

Rogers, Morgan v 696 

Smith V. Halkyard 602 

Bteere, Taft v 600 

Taft V. Steere 600 



SECOND CIECUIT. 

Circuit Court, D. Conneoticut. 

Brainard v. Evening Post Ass'n .... 422 
Brassey V. New York <&N. E. R. Co. 663 

Evening Post Ass'n, Brainard v 422 

New York & N. E. R. Co., Brassey 

„v 663 

Pegasus, The 45 

Circuit Court, E. D. New Yobk. 

Lake Shore & M. S. Ry., Sirapkins v. 802 

Pentlarge v. Pentlarge 817 

Simpkins v. Lake Shore & M. S. Ry. 802 

District Court, E. D. New Yobk. 

Aline, The.... 876 

(xvii) 



XVIU 



OASES BEPOBTED. 



Page 

Allen, In re 809 

Belle of Oregon, The 924 

Burns v. The Bpain 880 

Chas. E. Soper, The 844 

Curtis Park, The 797 

Daniel Steinman, The 918 j 

Dauatless, The 798 ! 

Geiser, The 8771 

Gik's, Scnbel v 224 

Lahaina, The 923 

Luokenback, E., The 8471 

Maggie Ellen, Thu 221 

Osseo, The 844 

Poaca, The 223 

8cobel V. Giles 224 

Southfleld, Tlie 841 

Spain, The, Burns v 880 

Two Hundred and Ninet_v-two Thou- 
sand Three Hundred Dollars, 

Whitev 848 

White V. Two Hundred and Ninety- 
two Thousand Three Hundred 
Dollars 848 

CiBcuiT CouBT, N. D. New York. 

Adams, MulviUe v 887 

Canada Cent. K. Co., Phelps v 801 

Doty V. Jewett 337 

Pield V. Ireland 835 

Ireland, Field v 83.5 

Gibbsv. Hoefner 32.^ 

Hoefner, Gibbsv 32 i 

Jenks, Swift v (i41 

Jewett, Doty v 337 

Mentz, Town of, Ilich v 725 

Moore v. North River Const. Co. . . . 803 

MulviUe V. Adams 887 

North Riv. Const. Oo., Moore v 803 

Phelps V. Canada Cent. K. Co 801 

Rich V. Town of Mentz 725 

Swift V. Jenks 641 

United States v. White 723 

White, United States v 723 

District Coubt, N. D. New Yokk. 

Dennis, J. W., The 799 

Ella B., The 792 

Letchworth, In re 873 

Merrell, In re 874 

Ontonagon, The 800 

Pride of America, The 607 

RussellSage, The 792 

CiKcuiT Court, S. D. New York. 

Adams v. Howard 317 

Arthur, Victor v 250 

Baluwin, Frelinarhuysen v 49 

Baltimore & O. Tel. Co., Western U. 
Tel. Co. v, 660 



Pag« 
Bank of the MetropoHs v. Pirst Nat. 

Bank 301 

Bartlett v. fîis Impérial Majesty, etc. 346 

Bell V. U. 8. Stamping Co 312 

Berlin & Jones Bnvelope Co., Reay v. 311 

Boyd V. Gill 145 

Brooklyn Ry. Bupply Co., Me Ar- 
thur V 263 

Claflin, Tuttle V 599 

Clews.Nott V 145 

toghlan V. Stetson 727 

Colgate V. We.itern U. Tel. Co 828 

Coughlin V. The Rlieola 926 

Cutter V. AVhittier 145 

Davis V. Fredericks 99 

Dennis, Perkins v 145 

Dow, Memphis & L. R. K. Co. v. . . . 388 

Drvfoos V. Wiese 315 

Pirst Nat. Bank, Bank of the Me- 

troplis V 301 

Pisk, Fogg V 235 

Fogg V. Fisk 235 

Fredericks, Davis v 99 

Frelinghuysen v. Baldwin 49 

Fryer v. Maurer 756 

Gill, Bovd V 145 

Gold & Stock Tel. Co. v. Pearce 419 

Hall, Muiison v 320 

Hicks V. Otto 749 

Himmor, Time Tel. Co. v 322 

Howard, Adams v 317 

Iron-clad Manuf 'g Co. , Matthews v. 321 
Jersey City, First Sat. Bank of , Bank 

of Metrop. v 301 

Léo v. Union Pac. Ry. Co 283 

Marlor V. Texas & P. Ry. Co 867 

Matihews v. Iron-clad Manuf'g Oo.. 321 

Matthews v. Spangenberg 823 

Maurer, Fryerv 756 

Mayor, etc., of New York, Mun- 

son V 313 

McArthur v. Brooklyn Ry. Supply 

Co 263 

Memphis & L. R. H. Co. v, Dow 388 

Merriam, Searls v 815 

Merritt, Oelberman v 408 

Munson V. Hall 320 

Munson v. Mayor, etc., of New York 313 
Muskegon Nat. Bank v. N. W. Mut. 

b. Ins. Co 405 

National Tel. Ce, Western U. Tel. 

Co. V 561 

Northwestern Mut. L. Ins. Co., Mus- 
kegon Nat. Bank v 405 

Nottv. Clews 145 

Oelberman v. Merritt 408 

Otto, Hicks v 749 

Pearce, Gold & Stock Tel. Co. v 419 

Perkins v. Dennis 145 

Raynor, Reay v 308 

Reay V. Berlin & Jones Envelope Co. 311 

Reay v. Ravnor 308 

Rheola, The 926 



CASES BEPOBTED. 



XIX 



Page 

Rheola, The, Conghlin v 926 

Kose V. Stephens & Condit Transp. 

Co 808 

Schalscha v. Sutro 319 

8earls v. Merriam 815 

Smith V. Standard L. M. Co 825 

Smith V. Standard L. M. Co 826 

Smith, United States Dairy Co. v... 97 

Spangenberg, Matthews v 823 

Standard L. M. Co., Smith v 825 

Standard L. M. Co., Smith v 826 

Stephens & Condit Transp. Co., 

Rose V 808 

Stetson, Coghlan v 727 

Sultan of Turkey, Bartlctt v 346 

Sutro, Schalscha v 319 

Texas & P. Ry. Co., Marier v 867 

Time Tel. Co. v. Himmer 322 

Tuttle V. Claflin 59;) 

Union Pac. Ry. Co., Léo v 283 

United States Dairy Co. v. Smith. . . 97 
United Stales Stamping Co., Bell v. 312 

"Vi«tor V. Ai'thiir 250* 

Washburn & Moen Manuf g Co. v. 

Wilson. 233 

Weslern U.Tel. Co.v. B. & O.Tel. Co. 660 
Western U. Tel. Co. v.Nat. Tel. Co. 561 

Western U. Tel. Ce, Colgate v 828 

Whittier, Cutter v U5 

Wiese, Dryfoos v 315 

Wilson, Washburn & Moen Manuf'g 

Co.v 233 

District Court, 8. D. New York. 

Alicia A. Washburn, The 788 

Alps, The 139 

Astrup V. Lewy 536 

Auflmordt, United States v 893 

B. B. Baunders, The, (two cases,)... IIS 

B. K. Washburn, The 788 

Blowers v. One Wire Rope Cable. . . 444 

Charley A. Reed, The 111 

Charlotte Vanderbilt, The 219 

City of Troy, The 111 

Col. Adams, The 795 

Crédit Lyonnais, The 123 

Duncan v. Shaw 521 

Echo, The 453 

Blvine, The 528 

Excellenzen Sibbern, The, Lewy v.. 536 

Garden City, The 529 

Gove V. Judson 523 

Gronn v. Woodrufi ■. . 143 

Houge V. WoodrufE 136 

■lessup, In re 94 

Judson, Gove v 523 

Kirby, Pentlarge V., (three cases,). .. 501 
Kirby Bung Manuf'g Co., Pentlarge 

V., (three cases,) 501 

Léonard v. Whitwill 547 

Lewy V. The Excellenzen Sibhern. . . 536 
Lewy, Astrup v 636 



Page 

Maryland, The 551 

Mercantile Mut. Ina. Co., Red Wing 

Mills v 115 

One Block of Marble, Ray v 525 

One Wire Rope Cable, Blowers v. . . 444 
Pentlarge v. Kirby, (three cases,) . . . 601 
Pentliirge v. Kirby Bung Manuf'g 

Co., (three cases,) 601 

Quaker City, The 141 

Querini Stamphalia, The 123 

Ray V. One Block of Marble 526 

Red Wing Mills v. Mercantile Mut. 

Ins. Co 115 

Rockaway, The 449 

Saunders, B. B., The 118 

Schreyer, In re 732 

Shaw, Duncan v 521 

Smith, P., The 551 

Snow, Winne v. ..-. 507 

Survivor, The 449 

Swan, The 455 

Titania, The, (two cases,) 101 

United States v. AufiEmordt 893 

Vaderland, The 527 

Washburn, B. K.,The 788 

Whitwill, Léonard v 547 

Winne v. Snow 507 

WoodrufE, Gronn v 143 

Woodrulï, Houge v 136 

Circuit Court, D. Vbbmont. 

Barlow v. Loomis 677 

Loomis, Barlow v 677 

Marble, Verraont Farm. Mach. Co. v. 307 
Vermont Earm. Mach. Co. v. Marble. 307 



THIED CIECUIT. 

CiBcniT CouHT, D. New Jbbbby. 

Allison V. Chapman 488 

Central R. Co. , Dinsmore v 153 

Chapman, Allison v 488 

Dinsmore V. Central R. Co 153 

Doyle V. Spaulding 744 

Headley, Roemer V 205 

Illiugworth V. Spaulding 744 

KropfEv. Poth 200 

Newman, Roemer v 98 

Poth, Kropiïv 200 

Roemer v. Headley 205 

Roemer v. Newman 98 

Spaulding, Doyle v 744 

Spaulding, Illingworth v 744 

District Court, D. Nirw Jersey. 

Frank C. Barker, The 332 

Imogene M. Terry, The 463 



SX 



CASES BEPOfiTBD. 



Marina, The. 



Page 
. 760 



Circuit Court, E. D. Pbnnsylvania. 

Bradley v. Hartford Steam-boiler I. 

«fclns. Co 246 

Elkins Manuf'g & Gas Co., Kirk v.. 417 

Green, Matthews v 649 

Hartford, etc., Ins. Co., Bradley v. . 246 
Kirk V. Elkins Manuf'g & Gas Co. . . 417 

Matthews v. Green 649 

Philadelphia & K. R. Co. v. Pollook 401 
PoUock, Philadelphia & K. K. Co. v. 401 
Santiago de Cuba, ïhe, v. The Boots 

Greya 213 

Santiago de Cuba, The, The Scota 

Greys V 213 

Scots Gi'eya, The, v. The Santiago de 

Cuba.." 213 

Scots Greys, The, The Santiago de 

Cuba V 213 



District Court, E. D. Pennsylvania. 

Cooke, In re 89 

Jay Cooke & Co., In re 88 

Saily, The 335 

Circuit Court, "W. D. Pennsylvania. 

Berry v. Sawyer 286 

Bradley V. DuU 913 

Clarendon, Borough of, Torpédo 

Co. V 231 

Dull, Bradley v 913 

Holliday, Reed v 325 

Lloyd V. Miller 915 

Miller, Lloyd v 915 

Reed V. Holliday 325 

Bawyer, Berry v 2b6 

Torpédo Co. v. Borough of Claren- 
don 231 

District Court, W. D. Pbnnstlvania. 



Joseph W. Gould, The. 
Bt. Lawrence, The 



786 
328 



FODRTH CIEOUIT. 

CtRouiT Court, D. Mabtland. 

Baltimore, C. & R. Steam-boat Ce, 
Odellv 56 

Baltimore, C. & B. Steam-boat Co., 
Purcell V 56 

Baltimore, C. & R. Steam-boat Co., 
Scott V 56 

Frazier, Nicodemus v 260 



Page 

Nicodemua v. Frazier 260 

Odell V. Baltimore, C. & R. Steam- 
boat Co 56 

Purcell V. Baltimore, C. & R. Steam- 
boat Co 56 

Scott V. Baltimore, C. & R. Steam- 
boat Co 58 

District Court, D. Maryland. 
Colina, The 131 

Circuit Court, E. D. North Caroloïa. 

Blake V, Hawkitis 204 

Huwkins, Blake v 204 

Circuit Court, W. D. North Carolina. 

Jones V. Veatry of Trinity Pariah. . . 59 
Triuity Parish, Vestry of, Jones v.. 69 

District Court, W. D. North Caro- 

LUîA. 

Worley, Ex parte 586 

Circuit Court, E. D. Virginia. 

Alexandria, City of, United States v. 609 

Alexandria, City of , United States v. 614 

United States v. City of Alexandria. 609 

United States v. City of Alexandria. 614 

District Court, B. D.Virginia. 

Baker Salvage Co. v. The Excelsior. 436 
Excelsior, Tlie, Baker Salvage Co. v. 436 
Manhasset, The 430 

Circuit Court, D. Wbst Virginia. 

Keller, United States v 633 

United States v. Keller 633 



FIFTH CIRCUIT. 

Circuit Court, N. D, Alabama. 

Jones, Nichols v 855 

Moody, Newman v. 858 

Newman v. Moody 858 

Nichols V. Jones 855 

Circuit Court, 8. D. Alabama. 

Louisville & N. R. Co., Waring v. . . 863 
Waring v. Louisville & N. R. Co. ... 86.3 



CASES BEFOBTSD. 



XXI 



Page 
DisTBiCT Court, B. D. Alabama. 

Alabama, The 544 

Circuit Court, E. D. Louisiana. 

Ashland, The 336 

Ashland, The 651 

Brown v. Francis 678 

Carter v. City of New Orléans 659 

City of Bâton Kouge, The 461 

City of Lincoln, Tlie 460 

Evans v. Si ate Nat. Bank 676 

Fletcher v. New Orléans & N. B. K. 

Co 731 

Francis, Brown v 678 

Francis, Spink v 670, 678 

Francis, Williams v 670 

Hall V. City of New Orléans 870 

"Mississippi Mills Co. v. Ranlett 191 

New Orléans, City of. Carter v 659 

New Orléans, City of, Hall v 870 

New Orléans & N. B. R. Co., 

Fletcher v 731 

Oluf, The 459 

Peer of the Realra, The 216 

Ranlett, îîississippi Mills Co. v 191 

Spink V.Francis 670, 678 

Spink, United States ex rel 631 

State Nat. Bank, Evans v 676 

United States ex rel. Spink 631 

United States ex rel. Williams 631 

Williams v. Francis 670 

Williams, United States ex rel 631 

District Court, E. D. Louisiana. 

Corozal, The 655 

Prinz Georg, The 653 

Circuit Court, W. D. Louisiasta. 

Chotard, Freidler v 227 

Freidler v. Chotard 227 

District Court, N. D. Mississippi. 

Brown v. Lee 630 

Duke V. Graham 647 

Graham, Duke v 647 

Lee, Brown v 630 

District Court, N. D. Mississippi, W. D. 

Estes V. Spain 714 

Spain, Estes v 714 

Circuit Court, S. D. Mississippi. 

Davis V. Duncan 477 

Uuncan, Davis v 477 



Page 

Circuit Court, N. D. Tbxab. 

Malvin v. Wert 721 

Muller V. Norton 719 

Norton, Muller v 719 

Wert, Malvin v 721 

Circuit Court, S. D. Texas. 

CarroU, Stadler v 721 

Stadler V. CarroU 721 

Circuit Court, W. D. Tbxab. 

Desmond v. City of Jeflerson 483 

Jefferson, City of, Desmond v 483 

Stevenson v. Woodhull Bros 575 

WoodhuU Bros. , Stevenson v 675 

District Court, W. D. Tkxab. 

Russell, United States v 691 

United Btates t. Bussell 591 



SIXTH CIECUIT. 

Circuit Court, D. Kentuckt. 

Howland Coal & I. Works, Well- 
inan v 51 

Wellman v. Howland Coal & Iron 
Works 61 

District Court, E. D. Michigan. 

James P. Donaldson, The 264 

Empire, The 558 

Jay Gould, The 765 

Johnson, C. N , The 782 

Worthington and Davis, The 836 

CiKCUiT Court, B. D. Ohio, W. D. 

Exchange Nat. Bank v. Miller 372 

Miller, Exchange Nat. Bank v 372 

Circuit Court, E. D. Tennessee. 

Cincinnati 8. Ry., Trustées of, v. 

Guenther 395 

Gueuther, Trustées of the Cin. B. 

Ry. V 395 

Circuit Court, B. D. Tennessee, 8. D. 

Sharp V. Whiteside 150 

Sharp V. Whiteside 156 

Sharp, Whiteside v 159 



xxu 



OASES BEPOBTBD. 



Page 

Sharp, Whiteside v 156 

Whiteside v. Sharp 150 

Whiteside v. Hharp 156 

Whiteside, Sharp v 150 

Whiteside, Sharp v 156 

Circuit Court, M. D. Tennebsee. 

East Tenn., V. & G. R. Co. v. R. R. 

Com. ot Tenn 679 

Louisville & N, R. Co. v. R. R. Com. 

of Tenn 679 

Railroad Com. of Tenn , East Tenn., 

V.&G. R. Co. V 679 

Railroad Com. of Tenn., Louisville 

&N.R. Co. V 679 

Circuit Court, W. D. Tennessee. 

Billard Y. Paton 619 

Memphis & Ohio R. Pkt. Co., Whit- 

tenton Manuf'g Co. v 273 

Paton, Dillard v 619 

Whittenton Manuf'g Co. v. Memphis 

& O. R. Pkt, Co 273 



BEVENTH CIRCUIT. 

Circuit Court, N. D. lLi,raoia. 

Butler, J. W., Paper Co., Chicago 

Music Co. V 758 

Chicago Music Co. v. J. W. Butler 

Paper Co 758 

Chicago Tire & Spring Works Co. v. 

Spaiilding 412 

Elgin Watch Co. v. Spaulding 411 

Pairbanks v. Spaulding 416 

Leahy v. Spaulding 417 

Louchheim, PoUok v 465 

Lyman v. Maypole 735 

Maypole, Lyman v 735 

Pollok V. Louchheim 465 

Spaulding, Chicago Tire & Spring 

Works Co. V 412 

Spaulding, Blgin Watch Co. v 411 

Spaulding, Pairbanks v 416 

Spaulding, Leahy v 417 

Spaulding, Wilson v 304 

Spaulding, Wilson v 413 

Wilson V. Spaulding 304 

Wilson V. Spaulding 413 

District Court, N. D. Illinois. 

American Eagle, The 879 

Leland, The 771 

Moore, United States v 39 

Stevens, Union Mut. L. Ins, Co. v. . 671 



Page 
Union Mut. L. Ins. Co. v. Stevens. . 671 
United States v. Moore 39 

Circuit Court, D. Ibtdiana. 

Dills, HuU V 657 

HuU V. Dills 657 

National Car-brake Shoe Co. v. Terre 

Haute Car, etc., Co 614 

Rude, Westcott v 830 

Terre Haute Car & Manuf'g Co., 

Nat. Car-brake Shoe Co. v 614 

WestcoU V. Rude 830 

District Court, D. Indiaha. 
Lowe, In re 689 

Circuit Court, E. D. Wisoonsin. 

Lane, United States v 910 

O'Neill, United States v 667 

United States v. Lane 910 

United States v. O'Neill 667 

Circuit Court, W. D. Wisconsqi. 

Bradleyv Kroft 295 

Perry v. Town of Westfleld 156 

Kroft, Bradleyv 295 

Middleton Paper Co. v. Rock R. Pa- 

perCo 252 

Rock River Paper Co., Middleton 

Paper Co. v 252 

Westfleld, Town of, Ferry v 155 



EIGHTH CIECUIT. 



Circuit Court, E. D. Arkansas. 

Rust, Texas & St. L. Ry. Co. v 239 

Texas & St. L. Ry. Co. v. Rust 239 

Circuit Court, D. Colorajdo. 

Colorado Land & Minerai Co., Crœ- 
susM.,M. &S. Co. V 78 

Crœsus M., M. &-S. Co. v. Colo. L. 
& Minerai Co 78 

Circuit Court, N. D. Iowa, C. D. 

Bell V. Koonan 226 

Noonan, Bell v 225 

Circuit Court, N. D. Iowa, E. D. 

Chicago, M. & St. P. Ry. Co. v. City 
of Sabula 177 



OASEB BEPOBTED. 



XXIU 



Page 
Babula, City of, Chicago, M. & St. P. 
Ry. Co, V 177 

CiBCUiT Court, D. Kawsas. 

Benedict v. 6t. Joseph & W. R. Co. . 173 
St. Joseph & W. R. Co., Benedict v. 173 

CracuiT Court, D. Minnesota. 

Andersen, Judge v 885 

Aultman v. Thompson 490 

Brown, Mowat v 87 

Chicago, M. & St. P. Ry. Co. v. 

Stewart 6 

CoUins V. Davidson 83 

Croswell v. Mercantile Mut. Ins. Co. 24 

Davidson , CoUins v 83 

Judge V. Andersen 885 

Lapp V. Van Norman 406 

Mercantile Mut. Ins. Co. , Crosvyell v. 24 

Mowat V. Brown 87 

Poole v. Thatcherdeft 49 

Stewart, Chicago, M. & St. P. Ry. 

Co.v 5 

Thatcherdeft, Poole v 49 

Thompson, Aultman v 490 

Van Norman, Lapp v 406 

District Court, D. Minnesota. 

Stowe, United States v 807 

United States v. Stowe 807 

Circuit Court, C. D. Missouri. 

Bauer, Heller v 96 

Heller v. Bauer 96 

CiRCurr Court, E. D. Missouri. 

Albiight V, Oyster 849 

Blair v. St. Louis, H. & K. R. Co. .. 861 
Centennial Mut. L. Ass'n, Eggles- 

ton V 201 

Chesman, United States v 497 

Cole V. City of La Grange 871 

Donahue v. Rolierts 863 

Bggleston v. Centennial Mut. L. 

Ass'n 201 

Kehlor, Kufeke v 198 

Kufeke v. Kehlor 198 

La Grange, City of , Cole v 871 

La Grange, City of , ëanford v 871 

Memphis,C &N.W. Ry.Co.,Wal8erv. 152 
Mosher v. St. Louis, I. M. & S. Ry. 

Co 849 

Oyster, Albright v 849 

Rôberts, Donahue v 863 

St. Louis, H. & K. R. Co., Blair v.. 861 



Page 
St. Louis, I. M. & 8. Ry. Co., Mo- 
sher V 849 

Sanf ord v. City of La Grange 871 

United States v. Chesman 497 

Walser v. Memphis, C. & N. W. Ry. 
Co 162 



Circuit Court, W. D. Missouri, B. D. 

Kellog V. Richardson 70 

Pacific Mut. L. Ins. Co., Sensender- 

fer V 68 

Richardson, Kellog v 70 

Sensenderfer v. Pac. Mut. L. Ins. Co. 68 



Circuit Court, W. D. Missouri, W. D. 

Missouri River, F. S. & G. R. Co. v. 

United States 66 

United States, Missouri River, F. S. 

&G.R.CO.V 66 



NINTH CIRCUIT. 

Circuit Court, D. Camfornia. 

American R. Bridge Co., Cardwell y. 562 

Bald win, Martin v 340 

Balf our v. Sullivan 578 

Cahn V. Wong Town On 424 

Cardwell v. Amer. R, Br. Co 662 

Giant Powder Co. v. Safety Nitro 

Powder Co 509 

Kennedy v. City of Sacramento 580 

Leong Yick Dew, In re 490 

MacNaughton v. South. Pac. C. R. 

Co 881 

Martin v. Baldwin 340 

Robb, Inre 26 

Sacramento, City of, Kennedy y. ... 580 
Safety Nitro Powder Co., Giant 

Powder Co. v 509 

South. Pac. C. R. Co., MacNaugh- 
ton v 881 

Sullivan, Balfourv 578 

Wong Town On, Cahn V 424 

District Court, D. California. 

Evans, United States v 912 

Tung Yeong, In re , , . 184 

United States v. Evaus 912 

Circuit Court, D. Nevada. 

Hampton v. Truckee Canal Co 1 

Truckee Canal Co., Hampton v 1 



XXIV 



CASES BEFOBTED. 



Page 
CraODIT OOUBT, D. Obboon. 

Dundee Mort., T. I. Co. v. School- 

dist. No. 1 359 

Fish-wheel Case, The 643 

Hatch, Wallamet Iron Bridge Co. v. 347 

Home Mut. ins. Co., Bpare V 14 

McCord, Williams v 643 

Oregon Ry. & Nav. Co., Wells, Fargo 

& Co. V 20 

School-dist. No. 1, Dundee Mortg., 

T. J. Co. V 359 

Spare v. Home Mut. Ins. Co 14 

Wallamet Iron Bridge Co. v. Hatch. 347 
Wells, Fargo & Go. v. Oregon Ry. & 

Nav. Co 20 

Williams v. McCord 643 



Page 
District Coubt, D. Oregon. 

Buchanan v. Northern Pac. Ry. Co. 254 

Bryant, C. D., The 603 

Kane, United States v 42 

Lawnsdale, West Portland Home- 

Btead Ass'n v 291 

Lung Chung v. Northern Pac. Ry. 

Co 254 

Northern Pacific Ry. Co., Buchan- 
an v 254 

Northern Pacific Ry. Co., Lung 

Chung V 254 

Ullock, The 207 

United States v. Kane 42 

West Portland Homestead Ass'n v. 
Lawnsdale 291 



t 



CASES 



AKGUED AND DETEEMINED 

m THB 



IRttited ^Wu ®toif mi WMâ (êmxi^. 



Hampton, Ex'r, etc., v. TutrcKEs Canal Co. 
{Gireuit Court, D. Nevada. November 24, 1883.) 

JUKISDICTION— FORECLOSURB OF MeCHANICB' LIBNB— STJIT BY ASSIGNEE— A.VBII- 
MBNT A8 TO CiTIZENSHIP— ACT OF MARCH 3, 1875. 

Where the assignée of a raechanic's lien seeks to enforce and foreclose such 
liens in a circuit court of the United States, it must afflrmatively and clearly 
appearfrom tlie bill flled that the court had juriadiction as to ail of the orig- 
inal lien claimants, and where no averment as to the citizenship of some of 
such claimants is made in an amended bill, it will be presumed that they are 
citizens of the state where the suit is brought, and the bill will be dismissed for 
want of iurisdiction. 

Suit in Equity to foreclose certain mechanics' liens. The opinion 
Btates the facts. 

W. E. F. Deal, for complainant. 

G. S. Varian, R, H. Lindsey, and R. M. Clarke, for défendant. 

Before Sa\vyeb and Sabin, JJ. 

Sabin, J. This suit was brought in thia court by G. P. Hubbell, 
since deeeased, a citizen of the state of California, against the défend- 
ant, a Nevada corporation, to foreclose certain liens, usually called 
mechanics' liens, set forth in the bill of complaint. The liens sought 
to be foreclosed and enforced against défendant are 122 in number, 
aggregating $115,059.66 in amount. They are classified as contract- 
ors', subcontractors', material-men's, and laborers' liens. Complain- 
ant, Hubbell, derived title to thèse liens through varions assignments, 
direct and intermediate, to himself . Of thèse liens, 112 were assigned 
by the original lienholders to J. C. Hampton, and by bim assigned 
to Hubbell ; three were assigned to J. C. Hampton & Co., and l)y 
v.l9,no.l— 1 



2 rEDBBAL BKFOBTEB. 

said firm to Hubbell; two to S. W. Lee, and by him to Hubbell; and 
five were assigned by the original lienholders directly to Hubbell. 

The original Mil of complaint was silent as to the eitizenship of ail 
of the original lienholders, and also as to the eitizenship of J. G. 
Hampton, J. G. Hampton & Go., and S. W. Lee, intermediate as- 
signées of 117 of thèse liens, and the immédiate assignors of com- 
plainant. Objection having been raised as to the sufficiency of the bill 
on this point, eomplainant filed an amended bill, June 5, 1882, alleg- 
ing that 113 of the original owners of said liens named in the 
amended bill were Ghinamen, and subjects of the emperor of China 
at the date of the filing of both the original and amended bill of eom- 
plainant. The amended bill, however, was wholly silent as to the eit- 
izenship of the other nine original lien-owners, and also as to the 
eitizenship of J. G. Hampton, J, G. Hampton & Go., and S. W. Lee, 
intermediate assignées of 117 of the liens sought to be foreclosed. 
The demands of the nine lienholders whose eitizenship is not set 
forth aggregate the sum of $4,890.52, in amounts varying from 
$2,584.66 to $33. 

This omission in the amended bill of any averment as to the eiti- 
zenship of thèse nine original lien claimants may be considered as an 
admission that they were citizens of Nevada at the time of the com- 
mencement of this action, since, had their eitizenship been such as 
to bring them within the statute giving this court jurisdiction, it cer- 
tainly would hâve been set forth in the amended bill prepared and 
filed expressly to obviate any supposed jurisdictional defect in the 
original bill. If, however, this presumption is not in fact true, still 
the bill is fatally defective on this point. The jurisdiction of the 
court as to ail parties must affirmatively and clearly appear by the 
pleadings, and this not by way of description or récital, but by pos- 
itive averment. 

The rulings of the suprême court upon this point hâve been uniform, 
and without exception. In Brown v. Keene, 8 Pet. 112, the court says : 
"The décisions of this court require that the averment of jurisdiction 
shall be positive that the déclaration shall state expressly the fact on 
whieh jurisdiction dépends. It is not sufficient that jurisdiction may 
be inferred argumentatively from its avertments." In Exporte Smith, 
94 U. S. 455, the court says : "No presumptions arise in favor of the 
jurisdiction of the fédéral courts." 

The statute of March 3, 1875, controUing the jurisdiction of the 
court in this matter, reads as follows : 

"Nor shall* any circuit or district court hâve cognizance of any suit, 
founded on contract, in favor of an assignée, unless a suit might hâve been 
prosecuted in such court to reeover thereon if no assignaient had been made, 
except in cases of promissory notes, negotiable by the law-merchant and bills 
of exchange." 

In this case it does not appear by the original or amended bill that 
any one of thèse nine original lien-owners, whose eitizenship is not 



HâMPÏON V. TBDCEEE CANAL 00. 



é 



Bet forth in the amended bill, could hâve prosecutôd au action in thîs 
court, upon any of those liens, "if no assignment had been made." 
But such fact must appear, or the court has not jurisdiction. Sec- 
tion 11 of the judiciary act of 1789 does not materially differ, upon 
the point hère involved, from the act of 1875, aupra, and the rulings 
of the suprême court upon section 11 of the act of 1789 are applica- 
ble in this case. Brown v. Keene, 8 Pet. 112; Jackson v. Ashton, Id. 
148; Montalet v. Mwrray, 4 Granch, 46; Corbin v. County of Black 
Hawk, 105 U. S. 659; Sere v. Pitot, 6 Cranch, 332; Bradley v. 
Rhine's Adm'rs, 8 Wall. 393; MoUan v. Torrance, 9 Wheat. 537; 
Morgan's Ex'r v. Gray, 19 Wall. 81. We think there is no conflict, 
upon the point hère involved, in the rulings of any of the national 
courts. 

It was suggested, upon argument, that the citizenship of thèse nine 
original lienholders was immaterial, since compiainant owned ail of 
the 122 liens, and hence none of the other lien claimants could be 
prejudiced; and, further, that the amount claimed by them is em- 
braced in the lien filed by Linn Chung & Co., as original contractors, 
for $60,000, and is also embraced in the lien filed by Ah Wan, as a 
subcontractor, for the same amount. The merit of the suggestion is 
not clear ; but were it so, it could scarcely prevail against the posi- 
tive provision of the statute. While the national courts may be in- 
voked, in proper cases, to give efifeci to and enforce etatutory liens 
and remédies provided by a state, yet in such proceedings they are 
guided by the state statute, and follow, as nearly as possible, the 
course indicated therein. Should the court proceed to examine this 
case upon the merits, it would be as necessary for it to investigate 
and détermine how much, if anything, was due upon each of thèse 
nine liens, as it would to investigate and détermine how much might 
be due upon any or ail of the other 113 liens. The liens cannot be 
singled out, or segregated, and some of them considered and others 
not considered. Some of the liens might be valid under the state 
statute, and others be fatally defective, for non-compliance with the 
statute in perfecting them. It might appear that the lien of Linn 
Chung & Co., and that of Ah Wan, for $50,000 each, were defective 
and could not be enforced, and that ail of the other liens were valid 
and binding upon the défendant, and compiainant entitled to ju^g- 
ment thereon. The liens must each be examined, and their valid- 
ity under the statute determined, as well as the amount due, and 
the rank of each declared. St. Nev. 1875, c. 64, § 11. And this is 
evidently the theory on which the bill of complaint was framed. If 
it was immaterial to compiainant whether or not thèse nine liens be 
adjudicated upon, why were they set forth in the bill, and judgment 
invoked upon them as well as upon the other 113 liens, and why 
did compiainant purehase them if not bénéficiai to him in some 
way ? And, if bénéficiai, he is entitled to such benefit. 

It is further insisted by compiainant "that the liens in this case 



4 FEDEUAL EEPORTEB. 

are, in no sensé of the word, eontracts," and hence are not TiNithin 
the act of congress. While it may be true that a lien per se is not 
a contract, yet ail liens of the nature set forth in the bill in thia 
action arise and are based upon contract, express or implied. The 
lien itself is merely an instrumentality, a spécial remedy given, by 
which the contract may be enforced. The assignment of a mère lien 
■would be idle — would confer no right of action upon the assignée 
thereof — if such assignment did not also transfer the debt secured by 
the lien. A debt is a sum of money due upon contract, express or 
implied, or establiahed by judgment. The debt transferred is the sub- 
stantial thing; the lien is an incident thereto, — a statutory remedy 
which the assignée may pursue, or he may wave it and pursue his 
common-law remedy, to recover the debt. The lien itself ma}' expire 
by limitation, if suit be not commenced to enforce it within six 
months after the same bas been filed for record. St. Nev. 1875, c. 
64, § 8. But the debt would not be extinguished by the expiration of 
the lien, and it could be enforced by proper remedy. The statute 
above cited cannot bear the construction sought to be put upon it. 
Section 5 of the act makes it obligatory upon the lien-claimant that 
he state in his claim. the "terms, time given, and conditions of his 
contract;" and the entire act is based upon the supposition of a con- 
tract, express or implied, between the parties. The words "eontrac- 
tor," "subcontractor," "debt," "creditor," etc., are of constant récur- 
rence in the act. And it is not clear bow a state can authorize or 
empower one person to charge an arbitrary lien against the property 
of another person, no privity, or contract, express or implied, exist- 
ing between such persons. Without considering this objection fur- 
ther, it will be sufficient to observe that this action is certainly brought 
to enforce the terms of a contract fully set forth in the bill of com- 
plaint. As it does not appear from the amended bill that any of 
thèse nine original lienholders, whose citizenship is not set forth, 
could bave maintained an action in this court to foreclose or enforce 
any of those liens, it foUows that their assignée could not do so. On 
this point there is no conflict in the décisions. 

We do not deem it necessary to décide whether or not this action 
could be maintained by complainant, as the assignée of J. C. Hamp- 
ton, J. G. Hampton & Co., and S. W. Lee, intermediate assignées of 
a portion of the liens, they being presumably citizens of Nevada, and 
défendant being a Nevada corporation. The décisions on this point 
seem to be somewhat conflicting. Bradley v. Bhine's Adm^rs, 8 Wall. 
396; Mollan v. Torrance, 9 Wheat. 537; Morgan's Ex'r v. Gray, 19 
Wall. 81. Contra, see Wilsnn v. Fisher's Ex'rs, Bald. 133; Dundas 
V. Bowler, 3 McLean, 204; MilledoUar v. Bell, 2 Wall. Jr. 334. But 
upon the case as presented in the original and amended bills, we think 
this court bas no jurisdiction in this case. We call attention to the 
fifth section of the act of March 3, 1875, and to the mling of the su- 
prême court thereon, in Williams v. Nottawa, 104 U. S. 209. It is a 



CHICAGO, M. A BT. P. RY. CO. V. STBWART. 6 

matter of regret that the décision of the court on this question of ju- 
risdiction was not had before the case had gone to the extent to which 
it bas proceeded, it being now submitted for judgment upon the tes- 
timony and proofs taken. But we cannot examine the case upon the 
merits. It must, therefore, be dismissed from this court for want of 
jurisdiction, without costs, and without préjudice to complainant. 
Let deoree be entered accordingly, and without préjudice. 



Chioaoo m. & St. P. Ey. Co. v. Stewabt. 
{Circuit Court, D. Minnesota. December, 1883.) 

1. AwAKD— Specific Pkrfoumance. 

An agreement for the conveyance of land at a price to be flxed by an arbl- 
trator named in the agreement, will not be speciflcally enforced ùnless the 
award is made within a rtasonable time. 

2. Samb— Kbasonable Time. 

In such a case a delay of six months in making the award, when the value of 
the land is rapidly increasing, is unreasonable. 
8. Samb— Entirb Tkact to bb Appbaibkd. 

Specific performance will not be decreed of an agreement to convey a tract 
of land by warranty deed, with covenanta against imcumhrances, at a price to 
be appraised by an arbitra ter, unless the award of the arbitrator appraises 
the entire tract without référence to easements and other incumbrances 
thereon. 

Bill in equity brougbt to obtain decree for the specific performance 
of a written agreement for the sale by défendant to complainant of 
certain land. The agreement is dated April 21, 1879, and provides 
that the défendant — 

" In considération of one dollar to him in hand paid, the receipt of which 
is hereby acknowledged, and other considérations hereinafter named, has bar- 
gaiiied and sold unto the said second party, and upon payment of the further 
considération therefor as hereinafter provided doth hereby covenant and agrée 
to eonvey to the said party of the second part, by a good and sufflcient war- 
ranty deed, free and clear from ail incumbrances, on demand of the party of 
the second part, ail that pièce or parce! of land situate in said Hennepin county 
and State of Minnesota described as foUows." 

Hère follows a particular description of the land by metes and 
bounds, and the remainer of the agreement is as follows: 

"And said parties do mutually agrée to submit to D. E. Barber, Esq., o£ 
said Minneapolis, the question of the value of said pièce or parcel of land, and 
the compensation to be paid therefor by said second party to said flrst party, 
and that his décision shall be tinal. And upon the payment of such sum as 
shall be so flxed and determined by said Barber, the party of the flrst part 
will at once exécute his waranty deed of the same as aforesaid, free and clear 
of ail incumbrances except a certain lease to "Wiggins & Thompson ; the party 
of the second part to take the same subject to such lease, and to receive any 



6 7EDEBAL BEPOSTEB. 

and ail rents hereafter accruing under said lease. The award of said Barber 
is to be made in writing and a copy thereof to be delivered to each of said 
parties." 

On the first day of October, 1879, the said arbitrator made his 
award, by which he fixed the value of said land at the date of said 
agreement, and the compensation to be paid therefor, at the sum of 
$3,350. The respondent resists the claim of the complainant upon 
varions grounds, among which are the following : (1) That the arbi- 
trator, after his appointment, refused to accept the same, and declined 
to act, continuing his refusai for about four months, but afterwards, 
and at the expiration of about six months, he decided to act, and did 
so against the objection and protest of défendant, who in the mean 
time had revoked his authority ; (2) that the arbitrator, in making 
his award, did not include, but on the contrary omitted, a part of the 
land included in the agreement. 

McNair é GilfiUan, for complainant. 

Oeo. B. Young, for défendant. 

McCrary, J. We will first consider the question whether the 
powers of the arbitrator had ceased prior to the time when he un- 
dertook to act. The agreement is silent as to the time within which 
the award was to be made. In suoh a case the arbitrator must act 
within a reasonable time. What is a reasonable time muçt be de- 
termined in each case upon its own peculiar facts and circumstances. 
If the property to be sold is situated in or near a growing and pros- 
pérons oity, and in a place where the value of real estate may be 
expected to inerease rapidly, it would be f air to présume that the par- 
ties contemplated promptness. A delay in fixing the price for a 
period of five or six months, under such circumstances, would be un- 
reasonable, because the value of the property within that time would 
be very materially changed. Much would dépend, in such a case, 
upon the question whether the agreement contemplâtes the fixing of 
the price according to the value at the date of the contract or at the 
date of the award. If the former, then the seller would certainly be 
entitled to a prompt appraisement, and a delay of five or six months 
would, as to him, be unreasonable, because it would require him to 
sell at a price which might and probably would be much below the 
value of the land at the time of the conveyance and at the time of 
the payment of the purchase money. 

The contract in the présent case is silent as to the question 
whether the value at date of contract or at date of award shall con- 
stitute the price to be paid for the land; but the arbitrator evidently 
considered it his duty to ascertain the value at the former period, and 
to fix the price accordingly, as he expressly states in his award that 
he fixes tbe value of the property at the time when the agreement 
was entered into, which was the twenty-first day of April, 1879, 
while the award is dated October 1, 1879. The delay was for more 
than five months, and the arbitrator acted in the end against the pro- 



CHICAGO, M. & ST. P. BY. OQ; V. STEWART. 7 

test of the défendant. The property ia situated very near to the 
cities of Minneapolis and St. Paul, both of which hâve grown with 
marvelous rapidity within the past 10 years, and at the time of the 
agreement it was known that the land in question was advancing in 
value. It is scarcely to be presumed that défendant intended to 
bind himself to sell his land in October for its appraised value in the 
previous April, and if not, he must hâve understood that the arbîtra- 
tor was to act at once, or at least without unneçessary delay. That 
such was his understanding is apparent from the fact which ap- 
pears in évidence that he urged the arbitrator to accept the duty and 
proceed to act soon after his appointment, which the latter déclined 
to d'o. After waiting some four mouths for action by the arbitrator, 
the défendant coheluded not to eonsummate the sale, and accordingly 
notified the arbitrator that he objected to his aeting after so long a 
delay. If the arbitrator was right in assuming that the land was to 
be appraised according to its value at the date of the contract, we 
think défendant had a right to object to the delay. If tho arbitrator 
was wrong in that, then his award must be set aside on that ground. 
The évidence sufficiently shows that the land increàsed in value be- 
tween April and October, 1879. 

Nothing appears on tho face of the agreement or in the évidence 
to show that the parties to the contract contemplated any unneçes- 
sary delay in making the award as to the value of the land, and it is 
plain that no great delay was necessary. We do not, of Course, mean 
to say that the arbitrator was bound to act immediately. He was at 
liberty to take a reasonable time in which to détermine as to his ac- 
ceptance of the trust, and thereafter a further reasonable time in 
which to investigate the question of value and make his award. But 
it is manifest that no great length of time was needed in which to 
détermine the question submitted to the arbitrator in this case. Un- 
der the circumstances of the case, we do not think the delay of over 
five months was contemplated by the parties when they entered into 
the contract, nor do we think it reasonable. We should, therefore, 
in the exercise of the discrétion which belongs to courts of equity, dé- 
cline to decree a spécifie performance of the award, even if this were 
the only objection to its validity. 

It is, however, further insisted that the arbitrator excluded from 
considération, in making his appraisement, the quantity of land in- 
cluded in certain streets, or supposed streets, being a part of the land 
to be conveyed, and of which complainant now asks a conveyance 
by warranty deed. Whether there were any streets or highways 
constituting easements upon the land was not a question for the ar- 
bitrator to détermine. The contract called for a deed of gênerai war- 
ranty against ail adverse claims, except a lease mentioned therein, 
and it was provided that the arbitrator should appraise the entire 
tract. The arbitrator was not authorized to go into an inquiry as to 
the effect upon the value of the land of the supposed public ease- 



8 7SDBBÂL BEFOBTKfi. 

ments for street purposes, for the conveyance with covenants of war- 
ranty, as provided for by the contract, would hâve bound défendant 
to remove or vacate the streets, if any lawfully existed, or to pay to 
complainant the damages resulting to it in conséquence thereof. If 
the award fixed the price subject to an easement, and the contract 
be specifically performed by the exécution of a warranty deed as 
therein provided, and now demanded by complainant, then the défend- 
ant vyill be called upon to convey more than he is paid for. He would 
convey free of ail easements, and, if any are found to exist, would 
be bound by his covenants to remove them. He would be paid only 
for the land subject to the easement. 

Upon considération of the proof we find that it clearly appears that 
the arbitrator took into account at least one street in fixing the price 
of the land, and reduced the price by the sum of $150, ou account of 
the same. In his own testimony he distinctly says : "If I had known 
certain that that road did net come ont, the award would bave been 
$3,500, instead of $3,350." And again: "If I had known certain 
that no road would cross there, $3,500 was the net sum." And stili 
further: "The award would hâve been $3,500 instead of $3,350 for 
the tract, as the papers show that I had seen, if I had known that 
there wasn't any road there to be taken off. That I say." 

It is clear that the duty of the arbitrator was to appraise the whole 
tract without inquiry as to the incumbrances or easements. Thèse 
were to be removed by the grantor. It is also clear that in deducting 
$150 from the value of the tract on account of easements, he departed 
from or varied the contract. In order to enforce a contract by spé- 
cifie performance, the court must be enabled to specifically perform 
every part of it. We cannot decree a spécifie performance with a 
variation. 1 Sugd. Vend. 221; Jordan v. Sawkins, i Brown, Ch. 
477; Nurse v. Seymour, 13 Beav. 254; Carnochan v. Christie, 11 
Wheat. 446. The award is also bad for the reason that it does not 
cover the entire matter submitted, to-wit, the value of the whole tract 
without référence to easement. 

It is well settled that a failure to include in the appraisement any 
part of the property is fatal to the award. Morse, Arb. 361; Emery 
V. Wase, 5 Ves. 846 ; S. G. on appeal, 8 Ves. 505 ; Nickels v. Hancock, 
7 De Gex, M. & G. 300, 318. It matters not that the portion of the 
property which was omitted from the appraisement was small in com- 
parison with that which was appraised. It is enough if it was a 
substantial and material portion of the property, and whether in the 
présent case it was worth only $150, or more or less than that sum, 
is immaterial. Nor can the award be now amended by adding to the 
appraisement the value of the property omitted. The parties agreed 
to be bound, not by a price to be fixed by any court, but by the judg- 
ment of the arbitrator named, upon the entire matter submitted. 
Should the court nowattempt to add anything to the award it would 
violate the agreement, instead of enforeing it specifically. Nickels v. 



CHICAGO, M. & ST. P. BY. 00. V. STEWABT. 9 

Hancock, supra; Wakefield v. Llanelly Ry. d Dock Co. 68 Eng. Ch. 
11; Skipworth v. Skipworth, 9 Beav. 135. The fact that the arbi- 
trator omitted from the appraisement a part of the propertj, may be 
shown by évidence aliunde the award. Beau v. Farnam, 6 Pick. 269 ; 
Haie V. Huse, 10 Gray, 99. 

The other questions discussed by counsel need not be considered. 
We deem it proper, however, to say that the proof does not, in our 
judgment, sustain the charge of défendant that the arbitrator was 
guilty of improper conduot or of partiality. His errors were simply 
errors of judgment, but they were nevertheless such as to preclude us 
from decreeing a spécifie performance of the contract and award. It 
is therefore ordered that the bill be dismissed. 

Nelson, J., concurs. 



Speclâc Enforcement of Awards and Contracta to Arbitrate. 

A party to an award bas several remédies at his disposai in case the per- 
son against whom the award is made refuses to abide by or to perform it. If 
both parties are in court, the award may be made an order of court, and 
performance may be compelled by the usual means resorted to by a court to 
compel obédience to its orders. If the parties are not in court, an action for 
damages wiU lie upon the award. In this note it is proposed to discuss the 
équitable remedy of spécifie enforcement, and its application to awards and 
arbitration contracts. 

1. AwAEDs— General Kule. A party is entitled to come into equity to 
compel the spécifie performance of an award whenever he cannot obtain, by 
proceeding at law, ail that was intended to be given him by the award. Inad- 
equacy of the remedy at law is the basis of the jurisdiction in equity,* This 
basis is broad enough to warrant the spécifie enforcement of awards relating 
to personalty, as well as of those relating to realty; for at law a party can 
only get damages for the breach of an award, which may be a very inadé- 
quate remedy even where the award is of personalty; e, g., where a rarepic- 
ture, or shares of stock in a private company, or a patent are awarded. 
Damages in such case would be inadéquate, because impossible of ascertain- 
ment. What jury can estimate the value of a rare picture, or of a patent, 
or of private stock? Hère, therefore, as in an award of real property, is it 
especially appropriate to apply the équitable remedy of spécifie enforcement. 

Illustrations. A partner can, as against his copartner, enforoe the spé- 
cifie performance of an award that the partnership stock on hand and accounts 
be equally divided.^ Especially will spécifie performance be decreed after 
one party has partly performed the award. Thus, where the award was that 
A. pay B. £900, and seal a release to B., B. to assign several securities he 
had from A., and A. sold lands to raise the £900. expecting B. to reçoive it, 
as he intended he would, and then tendered him the amount, together with 
the release, the lord chancelier decreed spécifie performance by B., even 
though the award was extrajudicial, and not strictly good in law.' So, an 
award relative to the partition of lands will be enforced.* A bill in equity 

> Jones v. Blalock, 31 Ala. 180. Viele v. T. & B. Ry. Oo. 21 Barb. 381 ; 

' Kirksey v. Pike, 27 Ala. 383. Hall v. Hardy, 3 P. Wms. 187. 
"Norton v. Mascall, 2 Vem. 24. See, «Whltney v. Stone, 23 Cal. 275. 

also, Cook V. Vick, 2 How. (Miss.) 882; 



10 



FEDEBAL BZFOBTEB. 



also lies to compel the exécution of a deed of land ascertained by an award 
of arbitrators appointed to settle the boundary Une between tlie lands of the 
parties;! and, generally, equity may compel the spécifie performance of 
awards concerning real estate, or for the purchase and sale thereof, even 
though it in volves the enforcement of an award to pay money;^ and in any 
proper case spécifie performance of an award will be decreed, although it be 
by paroi; 2 and although it award costs, which it is beyond tlie authority of 
arbitrators to do;'' and the fact that the submission contains a clause by 
which each party binds himself to the other in a sum certain, as a penalty, 
in case he refuse to abide by and perform the award, doea not deprive a 
court of equity of the power to decree a spécifie performance of the award, 
even though the party ref using to perform offers to pay the penalty agreed 
upon;5 and the court will enjoin proceedings at law until the award can be 
specifically enforced.^ Nor is the fact that the arbitrators hâve received in- 
compétent évidence an objection to their award being enforced.' Neither 
is mère inadequacy of the price awarded to be paid for iand a valid objection 
to enforcing the award, the inadequacy not amounting to conclusive proof 
of fraud.* Fraud may also give a court of equity jurisdiction to enforce an 
award. Thus, where an award provided that, in the event of the non-pay- 
raent of a certain sum of money, judgment should be rendered against the 
défendants in a suit then pending for its recovery, and by the connivance of 
défendants, and a third party, who assumed to act as plaintiff's assignée, the 
plaintiff was nonsuited without his knowledge or consent, so that the spécifie 
lemedy provided by the award was defeated, held, that thèse facts brought 
the case within équitable cognlzance, and that the direct payment of the 
money might be ordered by the court.» The party seeking spécifie enforce- 
taent must show a readiness to perform ail the award on his part.'" 

Exceptions. In the foUowing instances spécifie enforcement of the award 
was refused: The parties to a submission bound themselves to perform the 
award which certain arbitrators should "make and publish in writing under 
their hands, " concerning a boundary Une in dispute. The arbitrators executed 
a paper as an award, read it to the parties, and delivered copies to them, 
with au oral statement of the actual décision, and that it was uncertain 
whether the award expressed it, but that, if it did not, it should be afterwards 
amended when the mistake should be ascertained. The chairman afterwards 
learned that the Une actually agreed upon was not correctly stated, and he 
accordingly amended the original award, which he had retained, but which 
was not again presented to the other arbitrators for signature, nor repub- 
lished. Held, that equity would not enforce either the amended or original 
award." Where it appeared that the arbitrators weredeceived, and the award 
was made clandestinely by part of the arbitrators, without hearing each party, 
the court set aside and refused to enforce the award.i^ "Where arbitrators to 
<letermine the value of real estate omitted to take into considération the 
value of a water power, and appraised it at much less than the real value, 
spécifie performance was refused." So, also, in Parker v. Whitney,^* wherein 
the price was flxed considerably below the real value of the property. Spécifie 
performance of an award for the payment of money merely, will not be eom- 
pelled.is And where an award was that A. should pay B. a certain nuinber of 
dollars "in curreney" and an additional sum "in gold," spécifie enforcement 

> CaldweU v. Diokinson, 13 Gray, 365. » Story v. N. <fc W. R. Co. 24 Conn. 94. 

• M. & O. R. Co. V. Soruggs, 50 Miss. 284. " MoNeill v. Magee, 5 Mason, 245. 

» Marsh v. Packer, 20 Vt. 198. "Caldwell v. Dickinson, 18 Gray, 365. 

'Caldwell v. Diokinson, supra. "Ives v. Medoalfe, 1 Atk. 64. 

6 Whitney v. Ston e, 23 Cal. 275. " Buys v. Eberhardt, 3 Mich. 524. 

•Joues V. BUIock, supra. " Turn. & R. 366. 

' Viele T. T. & B. Ry. Co., supra. " Wood v. Shepaid, 2 Pat. & H. (Va.) 

«Id. 442. 



CHICAGO, M. & ST. P. BT. 00. V. STEWABT. 11 

was refused as to the portion directed to be paid "in gold.^' ^ Lâchés may 
lead a court of equity to refuse spécifie enforcement of an award. Thus a 
bill for a reconveyance of anestate pursuant to an agreement and subséquent 
award, the bill being brought as against purchasers af ter a considérable lapse 
of time, and the original vendee being dead and insolvent.^ An agreement 
to sell at a price to be flxed by arbitration will not be enforced, wliere some 
of the parties to it are married women, one of whom had not executed it.^ 

2. CoNTBACTS TO Aebitbate — Gbnebal Eule. Contracts to arbitrale 
are not specifleally enforceable. The reasons upon which this rule rests are 
several, and seeraingly good ones. At common law (however it may be by 
statute) arbitrators cannot coinpel the attendance of witnesses or administer 
an oath. They cannot coinpel the production of documents, books of account, 
and papers, or insist upon a discovery of facts from the parties under oath. 
One reason, therefore, of the refusai of equity to specifleally enforce contracts 
to arbitrale is this: Equity will not compel a party to submit the décision of 
his rights to a tribunal which confessedly does not possess full, adéquate, and 
complète means within itself to investigate the merits of the case and to 
administer justice. Another reason is that equity will not make a vain 
decree, incapable of enforcement. Suppose it decrees spécifie enforcement. 
How can it compel the parties to name the arbitrators ? How can it compel 
them to agrée upon the arbitrators? The court has no authority to sélect 
arbitrators for the parties. This subject is elaborately discussed by Mr. Jus- 
tice Stoey in Tobey v. Bristol Co.,* whô concludes that "the very irapracti- 
cability of compelling the parties to name arbitrators, or upon their default 
for the court to appoint them, consti tûtes, and must forever constitute, a 
complète bar to any attempt on the part of a court of equity to compel the 
spécifie performance of any agreement to refer to arbitration. It is essen- 
tially, in its very nature and character, an agreement which must rest in the 
good faitd and honor of the parties, and, like an agreement to paint a picture, 
or to carve a statue, or to wr'te a book, or to invent patterns for prints, mu&t 
be left to the consciente of the parties, or to such remedy in damages for the 
breach thereof as thb law has provided." Another reason why courts of 
equity refuse specifically to enforce an agreement to arbitrale is because so 
to do would bring such courts in conflict with tnat policy of the common 
law which permits parties in ail cases to revoke a submission to arbitration.' 
Finally, perhaps the best reason for refusing spécifie enforcement in such 
cases is that so to do ousts the courts of jurisdiction, and tends to refer the 
décision of difflcult légal questions to inexperienced and incompétent persons. 

lUttstrations. Among the cases which illustrate the refusai of the courts 
to Compel an arbitration are the following: A statute authorized county 
commissioners to submit certain claims of A. to arbitration. They ordered a 
référence of part of the claims. Held, that A. could not présent a schedule 
ot names of persons who would be acceptable as arbitrators, and compel, by 
decree in equity, the sélection of some of them by the commissioners, and a 
référence of ail the claims to them.* A testator, in his will, provided that 
any disputes regarding it should be decided by certain arbitrators, and that 
any party who should refuse to submit to arbitration should forf eit his rights 
under the will. Held, that such provision was in terrorem merely, and that 
no such forfeiture could be incurred by contesting any disputable matter in 
relation to it in a court of justice.' A. agreed, in writing, with B. that if B. 
would buy certain shares in a corporation held by C, the company should em- 
ploy him at a certain yearly salary, and that, if the company should fail or 

1 Howe V. Nickerson, 14 Allen, 400. «Greason v. Keteltaa, 17 N. Y. 491. 

» McNeill V. Magee, 5 Mason, 244. «Tobey v. Bristol Co. 3 Story, 800. 

•Bmery V. Wiae, 6 Ves. Jr. 848. 'Coûtée v. Dawson, 2 Bland,(Md.) 264. 
*8Stoiy,826. 



U ÏBDEBAL BEFOBTEB. 

lefnse to give hîm employment, A. would purchase the sliares of him at a fair 
priée; that, if tlie parties could not agrée as to what was a fair priée, the 
same should be determined by arbitrators, whose décision should be binding. 
Held that, even if the agreement was not void as against public policy, spé- 
cifie performance of it would not be compelled.i Under a mortgcige of real 
estate to secure a bond containing tliis stipulation: "ïhat should either party 
be dissatisfled with the fulflUing of the above bond, it shall be submitted to 
certain persons, (naraed.) and their décision shall be final," — the niortgagee 
may enter forclosure for a breach of the mortgage without resorting to the 
opinion of the arbitrators named.^ Further, to the effect that a mère agree- 
ment to refer to arbitratiou, where no référence has taken place, cannot take 
away the jurisdiction of any court, see Mitohell v. Barris ' and Street v. 
Righy* 

Insurance Policies. It is not infrequently provided in policies of insurance 
that any dispute arising under the policy shall be referred to arbitrators. 
Such agreements to arbitrate, it has been decided, do not oust the courts of 
their jurisdiction.* So, where the underwriters ref used to pay the loss of the 
assured, his right of action was held immediately to accrue, although there 
was a clause in the policy that payment was not to be made until 90 days af- 
ter proof and adjustment of the loss, and that, in case of dispute, the same 
might be settled by arbitrators.' The action may be sustained without any 
ofifer to refer;' although, if there be à référence depending, or made and 
determined, it might hâve been a bar.* But in Scott v. Avery^ it was decided 
that, although an agreement which ousts the courts of their jurisdiction is 
illégal and void, yet an agreement in a policy of insurance as to arbitration 
was not of that description, slnce it did not deprive the plaintiff of his right 
to sue, but only rendered it a condition précèdent that the amount to be re- 
covered should be ûrst ascertained, either by the committee or arbitrators. 
In Goldstone v. Osborne^'^ it was held that the insured might raaintain an ac- 
tion on such a policy, notwithstanding the condition, when it appeared that 
the insurers denied the gênerai right of the insured to recover, and did not 
merely question the amount of damage. So he may, if the insurance Com- 
pany waive the right to a submission to arbitration, as by taking possession 
and repairing the thing insured." 

Valuations — Renewal qf Leases. It is not uncommon to insert in leases 
stipulations for a renewal upon a rent to be a percentage of a valuation by 
appraisers or arbitrators. The parties to such a lease do not waive the juris- 
diction of the ordinary tribunals.'^ But in thèse cases the courts will not 
compel the parties to name arbitrators.'' It is not meant to say, however, 
that the courts will not enforce contracts to renew leases; on the con- 
trary, many- cases décide that the courts will compel a renewal of such 
contracts. Thus, where A. flled s» bill in equity alleging that he had de- 
mised certain promises to B., with the agreement that near the end of the 
lease A. and B. were e^ch to appoint an assessor, and the assessors a third, who 
should unanimously assess the value of the improvements and the yearly 

1 Noyés V. Marsh, 123 Mass. 286. »8 W., H. & G. 497. 

» mil T. More, 40 Me. 616, "2 Car. & P. 650. 

»2 Ves. Jr. 129. " Cobb v. N. E. M. Ins. Co. 6 Gray, 193. 

*6 Ves. Jr. 814. u Gray v. Wilson, 4 "^atts, 39. 

'Allègre v. Maryland Ins. Co. 8 Har. & "Johnson v. Conger, 14 Abb. Pr. 195 ; 

J. 408 ; Robinson v. George's Ins. Co. 17 Me. Kelso v. Kelly, 1 Daly , 419 ; Bjddle v. Ram- 

181; KîU V, Hollister, 1 Wils. 129; Ames- sey, 52 Mo. 153; Hqpkins t. Gilman, 22 



bury T. Bbwditch Ins. Co. 6 Gray, 596. Wis. 476 ; Qreason v. Keteltas, 17 N. Y. 491 ; 

•Allègre v. Maryland Ins. Co., supra. Gourlay v. Duke of Somerset, 19 Ves. Jr. 

' Robinson v. George's Ins. Co. 17 Me. 429 ; Agar v. Macklew, 2 81m. & Stu. 418 ; 

ISl. etrohmeir v. Zeppenfeld, 3 Mo. App. 429 ; 

•KillT. Hollister, 1 Wils. 128. Caùohester v. Mcintire, 4 Bligh, (N. 8.) 78. 



OHIOAGO, M. A ST. P. BT. 00. V. STEWABT. 13 

rental, and that A. should then hâve the privilège of buying the improve- 
ments, or should grant a renewal of the lease at the rental so flxed, and with 
the old covenants, and that B. had always appointed partial assessors, so that 
no unanimous décision could be obtained, and had occupied the premises for 
a number of years since the expiration of the original lease without paying 
any rent, held, that the bill was proper, and that equity would entertain 
the suit on the grounds of fraud, account, the prévention of a multiplicity 
of suits, and because a remedy at law would be neither plain, adéquate, nor 
complète.' In New York it is decided that the court will flx the rent, or direct 
a renewal at the former rent,^ or order a référence to ascertain what the amount 
of rent should be.^ InEngland, inonecase, the court refused to substitute the 
master for the arbitrators, holding that that would be to bind the parties 
contrary to their agreement.'' In another case, the question arose whether 
a référence to settle a lease to be made by défendant to plaintifl should be to 
the raaster, or to G. under an agreement that certain matters in the lease 
should be judged by G., or, in case of his death, by some other and. compétent 
person to be mutually agreed upon by the parties. It was held that the lease 
must be settled by the master, no steps having previously been taken to se- 
cure G.'s approval.^ And where the concurrence of one of the arbitrators was 
secured by the influence of the tenant's wife, and the award was especially 
favorable to the tenant, the latter was denied spécifie enf orcement.« • 

Valuation in Contracts ofSale. Nor will courts of equity decree spécifie 
enforcement of contracts of sale upon a valuation to be made by arbitrators.^ 
But where standing timber was sold, and by the contract the quantity was 
to be determined by référées named, after an examination and measure- 
ment of the timber one of the référées fell sick, and the others made an es- 
timate and report, held, that the sale of the timber was the subject of the 
contract, and that, to prevent a faîlure as to the principal matter, equity 
would furnish means of ascertaining the quantity, but would not compel 
spécifié exécution of the contract.' 

Partner sMp Contracts to Arbitrate. A. and B., partne :s, agreed that A. 
should withdraw, and that, if afterwards B. should désire to retire, A. should 
hâve the privilège of purchasing the good-will, stock, etc., to be valued "in 
the usual way " by two valuers, one to be named by A. and another by B., or 
by an umpire. B. refused to allpw his valuer to proceed. Held, that there 
was no contract that a court of equity would enforce.' Nor is such an agree- 
ment a défense to a suit between partners." But where two part.ners agreed 
that upon dissolution one should purchase the share of the other, at a priée 
to be fixed by two arbitrators appointed by each partner, the îourt held the 
valuation not of the substance of the agreement, and that it would substitute 
itself for the arbitrators in order to carry the agreement into eflect." 

Contracts for Work. In contracts with rail way and other companies it is 
usual to Stipulate that a référence to the engineer or to some other offlcershall 
be made a condition précèdent tô recovery in case of dispute under the con- 
tract. In such case neither party can sustain an action on the contract 

'Biddle v. Eamsey, 52 Mo. 153. See, dell v. Brettargh, 17 Ves. Jr. 231: Ckiffith 

also, Strohmeir v. Zeppenfeld, 23 Mo. v. Frederick (S). Bank, e Gill & J. 424; 

App. 429. Kichardson v. Smith, L. K. 5 Ch, 648; 

2 Johnson v. Oonger, 14 Abb. Pr. 195. Morse v. Merest, 6 Mad. 25; Smith, v. Pe- 

•Kelao V; Kelly, IDaly, 419. ters, L. H. 20 Eq. 5il. , 

'Agary. Macklew, 2 8im. & Stu. 418. 'Baokus' Appeal, 68 Pa. St. 186. 

'Gourlay y. Duke of Somerset, 19 Ves. 'Vickers v. Vickers, L. E. 4 Bq. 62:. 

Jr-*29. "Wellington v. Mclntosli, 2 Atk. 569; 

«Chichester v. Mcintire, 4 Bligh, (N. Tattersal t. Groot, 2 B. & P. 131. 

S-)78. "DinhamT.Bradford,L. E.5 Ch 619. 

'MilnersT. Gery, 14Ves.jT. 400;BIun- . 



14 7EDEBAIi BBFOBTEB. 

wilhout petformance, or an ofEer to perform.* In such a case an engineer'a 
award or flndlng may be conolusive on a sM&-contractor.2 But wliere an 
agreement was made between a land-owner, through wtose land a railway 
was about to be laid, and the company, whereby it was agreed that an esti- 
mate should be made by tbe company's engineer as to the damages, whioh 
should be submited to A., the land-owner's agent, "for approval," "the 
amount, wheu agreed upon or determined," to be paid to the land-owner in 
discharge o£ ail obligations as to the road. A. died before the engiueer's esti- 
raate waa sent in. Held, that submission to A. for approval was of the es- 
sence of the conti act, and that inasmuch as by A.'s deatli the contract could not 
be performed in the manner agreed, the court ref used spécifie entorcement.* 
And the courts hâve ref used to appoint arbitrators to value works, érections, 
buildings, or the damage caused thereby.* 

Exceptions. Although a court of equity will not in gênerai decree spécifie 
performance of an agreement to refer to arbitration, or, on the death of an 
arbitrator, substitute the master for the arbitrator, yetthe party who refuses 
to supply thé deâciency by naming a new arbitrator may be denied relief 
f rom a court of equity except upon the terms of his doing equity, which may 
consist in his consenting to the accounts being taken by the master.^ And 
although equity will not decree spécifie performance of a contract to arbi- 
trate, yet where a question of damages arises it is- not error for the court, by 
consent of parties, to permit the amount to be ascertained by arbitrators and 
to decree the amount thus found.* Adelbert Hamilton. 

Chicago. 

'See Monongahela Nav. Co. v. Fenlon, Haggart v. Morgan, 1 Seld. 422; Gibbons 

4 "Wçitts. & S. 205. V. Edwards, 2 Dru. & War. 80. 

' Faunee V. Burke, 4 Harris, 469. 'Cliislyn v. Dalby, 2 Younge & C. 

•Pirth V. Midland Ry. Oo. L. R. 20 Eq. Bxch. 170. 
100. «Conner t. Drake, 1 Ohio St. 188. 

♦Haggart v. Morgan, 4 Sandf. 198; 



Spaeb V, Home Mut. Inb. Co. 

{Oireuit Court. D. Oregon. January 21, 1884.) 

1. Agent Adverbelt Intbrested to Prikcipal. 

The law will not allow a pôrson to act as agent when he bas an interest ad- 
verse to Lis principal ; and therefore an agent of an insurance compàny to ré- 
crive and transmit applications for insurance, when making an application 
therefor on hia own property, directly or indirectly, for his own beneflt, is act- 
ing for himself, and cannot be cunsidered the agent of the insurance company. 

2. Suit to Rbfokm a Contract. 

The évidence necessary to support a bill to reform a contract must showoer- 
tainly in what the mistake consista, and that it was mutual. 

3. OaSB nj JtTDGMBNT. 

The ownerg of a warehouse applied to an insurance company, of which they 
were' agents, to receive and transmit applications for insurance for a policy 
on the same, as the property of their iudgment créditer, and the company, 
knowinç nothing to the contrary, issued the policy accordingly, and upoa the 
destruction pf the property by fire ref used to pay the Insurance, on tbe ground 
that the asSÙred had no insurable interest therein, the assured having failed 
in an action on the policy to recover the insurance, on. the ground that it did 
not appear but that his délit could be otherwlse made ont of the remaining 
property of his debtors,— 8 Sawy. 618, [B, C. 15 Fed. Rep. 707,1— brought a 



SP ARE i;. HOME MÛT. INS. 00. lÔ 

suit in equity to reform the policy, alleglng that by mistake ît was îssued in 
the'name of the créditer, as owner, when it should hâve been issued in the 
name of the debtor and for his beaeflt, in case of loss, hM, that the évidence 
did not support the allégation of mistake, but, on the contrary, showed that 
the Company was induced to issue the policy by the false représentation of ihe 
owners and applicant, on account of which déception it was èntitled to lescintl 
the contract or treat it as nuU. 

Suit to Correct a Mistake in a Policy of Insurance. 

W. Scott Bebee and W. Cullen Gaston, for plaintiff. 

Cyrus A. Dolph, for défendant. 

Deady, J. This suit was commenced on April 28, 1883. It is 
brought by the plaintiff, a citizen of Oregon, against the défendant, a cor- 
poration formed under the law of California and doing business in this 
state, to reform and enforce a policy of insurance against fire, issued 
by the défendant on a warehouse in Cottage Grove, Oregon, for a pe- 
riod of one year from July 26, 1881, in the sum of $900, by coirecting 
an alleged mistake therein, whereby said property appears to hâve 
been insured as the property of the plaintiff, when in fact it was agreed 
and understood that it should be insured as the property of Aaron 
and Ben Lurch, whose property it was and is, for the benefit of the 
plaintiff. The answer of the défendant dénies the allégations of the 
bill, as tothe alleged mistake, and avers that Lurch Bros, applied to 
it, as the agents of the defendaût, to hâve the property insured as 
that of the plaintiff, and that it never was otherwise informed until 
after the loss and readjustment, when it refused to pay the same and 
offered to return the premium of $18.90, which was refused. The 
answer also contains a plea of limitation to the effect that the suit is 
barred by the stipulation in the policy, which provides that no suit 
shall be maintained therenn unless commenced within 12 months 
after the loss occurs. On August 13th this cause was before this 
court on a demurrer to the bill, when it was held that the stipulation 
in the policy limiting the right to sue thereon to the 12 months next 
after the loss did not commence to operate until the expiration of 
the 60 days thereby given to the insurer in which to make payment. 
17 Fed. Eep. 568. ' 

But now it is contended by the défendant that because it gave no- 
tice of its intention not to pay and the reason therefor. before the 
expiration of the 60 days, that the plaintiff was ai liioerty to com- 
mence his suit at ohee, and therefore the period of 12 months com- 
menced to run from that time and expired more than a month before 
the commencement of this suit, namely, March 23, 1883. This is a 
plausible proposition, but I do not think it a sound one. The stipu^ 
lation for a delay of 60 days after notice and pfoof of loss within 
which to make payment, being intended for the benefit of the défend- 
ant, doubtless it might waive it. And by giving notice on March 23d 
that it would not pay the loss, for the reason stated, it eridently did 
80. Thereafter the plaintiff may hâve been at libertj to sue without 
further delay. But I doubt if the défendant could by this means 



16 fedi:ba.l bepobteb. 

compel the plaintiff to commence sooner than he otherwise would be 
required, or that the limitation of 12 months would thereby" com- 
mence to run, as against the plaintiff, before the previous period of 
60 days had expired. 

The défendant also contends now, upon the proof, that the suit is 
barred, even allowing that the 12 months did not commence to run 
until after the expiration of the 60 days, because it appears that the 
notice and proof of loss were made as early after the fire as Febru- 
ary 16th. The évidence in the case consists of the testimony of the 
plaintiffs, Aaron and Ben Lurch, the defendant's Oregon manager, 
Mr. George L. Story, and its traveling agent, D. B. Bush, and sun- 
dry exhibts, consisting of prier policies of Insurance on this property 
and letters and documents relating thereto. From thèse proofs and 
the pleadinga it satisfactorily appears that the property was destroyed 
by fire on February 14, 1882, and the loss adjusted by the défendant 
within a few days, and not exoeeding a week, thereafter, at $900,and 
that on March 23d the défendant gave notice to the plaintiff that it 
declined to pay the loss because it had ascertained at and since the 
adjustment that the plaintiff had no interest in the property. Aaron 
and Ben Lurch both testify that they gave notice of the loss on the 
next day thereafter, and that within a week, the agent, Bush, was at 
Cottage Grove and adjusted the same. Bush swears that he was 
there and made the adjustment on February 16th, and as he speaks 
positively, and from writteu memoranda, this is probably the fact. 
The plaintiff does not appear to bave had anything to do with the 
business personally, and knows nothing about it, except the offer to 
refund the premium in Lurch's store when he and they declined it — 
he saying that he had nothing to do with it. ' 

But taking the statement most favorable to the plaintiff on this 
point, and assuming that a full week elapsed before the adjustment, 
which necessarily included notice and proof of loss, or waiver of the 
same by défendant, the period of 60 days commenced to run from 
and after February 21st, and expired on April 22d. Within the next 
12 months this suit should bave been commenced, whereas it was de- 
layed until six days thereafter. The plaintiff claims, however, that 
the 60 days did not commence to run until Bush returned to Cottage 
Grove and notified the plaintiff on March 23d that the défendant 
would not pay the loss. But according to the language of the policy 
the 60 days is to be counted from the giving of notice and proof of 
loss, which was either made or waived before the adjustment, and not 
the refusai of payment. Indeed, this 60 days is manifestly given to 
the défendant for the very purpose of ascertaining and determining 
whether, admitting the loss or the sufQciency of the notice and proof 
thereof, it is bound to or will pay the claim of the assured. Nor îa 
there any ground to claim that the matter was kept open from the 
first to the second visit of Bush to Cottage Grove for further proof in 
any particular. The proof of loss and ownership was made on the 



SPABE V. HOME MUT. IKS. 00. 17 

first visit, and it was explicit and satisfactory. The plaintiff swore 
that he had no interest in the property, and the Luroh Bros, claimed 
to own it, which claim was supported by the county record of deeds. 
80 it is quite plain that this suit is barred by lapse of time. It was 
commenced just six days too late. But if this were otherwise, the 
plaintiff is net entitled to the relief sought. I hâve examined the cir- 
cumstances of the case as disclosed by the évidence, and they do not 
lead to the conclusion that there was any mistake made in the word- 
ing of this policy as alleged, but the oontrary. 

Briefly, it appears that in 1878 the Lureh Bros, were doing busi- 
ness at Cottage Grove as commission merchants when they failed, 
claiming to owe the plaintiff, who is a person of comparative wealth, 
living in the same place, nearly $5,000, with interest at 1 per centum 
per month, for which he obtained or had a judgment against them 
on December 9, 1878, Upon this he sold and purchased their store, 
but retained .them as clerks and managers of the business for a year 
or two, when they succeeded in making a settlement with their cred- 
itors, and took the store back again, still owing him, as they allège, 
about $2,000, which was the value of the stock when returned to them. 
Aaron Lurch says that after the failure he told the plaintiff that, as 
he was a creditor of theirs, he would hâve this property insured for 
his beneiit, without stating how or in what manner he expected to 
accomplish it, and the plaintiff says he assented to the suggestion, 
but it does not appear that he ever gave the matter any f urther atten- 
tion, or that the Lurches were under any légal obligation to him to 
do 80. On July 26, 1879, Aaron Lurch had the property insured in 
the Connecticut Fire Insurance Company, for one year from that date, 
for the sum of $900, as the property of the plaintiff, the application 
therefor, which was made by him in person, being in his handwriting, 
and signed by him, "A. H, Spare," In 1880, and before July 24th, 
the Lurch Bros, became the agents of the défendant at Cottage Grove 
to solicit and receive applications for fire insurance, and on that day 
they, as such agents, wrote to the manager of the défendant, at Port- 
land, inclosing the said Connecticut policy on this property, as the 
property of the plaintiff, and asked to hâve it renewed in the Home 
Mutual; and that they might be allowed the proper commission 
therefor, which was done; and on July 14, 1881, on their written 
application, the policy was renewed with the défendant for another 
year, This was ail the communication there ever was, until after 
the fire, between the défendant and any of thèse parties on this sub- 
}ect; and ail the knowledge which the défendant or its manager or 
agents had, as to the ownership of this property, prier to the loss, 
was derived from, and in acoordance with, the information thus 
obtained. 

Upon this state of facts it is prepostérous to claim that the plain- 
tiff or his agents, the Lurches, ever intended or thought of insuring 
v.l9,no.l— 2 



18 FBDEBAIi BBPOBTEB. 

this property aa the property of the latter, for the benefit of tht 
former, or otherwise than it was done. It was insured for three year. 
in succession, at the request of the Lurches, as the property of tht 
plaintifE, and exactly as Aaron Lurch described it in the first appli- 
cation made and written by him in 1879. What was the reason or 
purpose of this misrepresentation it is not material now to inquire. 
The Lurches may hâve honestly intended to insure this property for 
the benefit of the plaintiff, but were mistaken as to the proper method 
of so doing. But in that case, the plaintiff must abide the resuit ol 
their action, just as he would if they had refused or neglected to in- 
sure it at ail. He had no control over them in this respect, — they 
were not under any légal obligation to inaure the property for him, — 
and in fact were acting for themselves. But on the évidence, the 
whole case of the plaintifE is so vague, improbable, and contradictory 
that it is difiBdult to assign any reasonable and correct motive for 
their action. But counsel for the plaintifE insist that the Lurches in 
procuring this policy to issue were acting as the agents of the de- 
fendant, and, therefore, their mistake, if any, is the mistake of the 
défendant, of which it cannot now take advantage. When the alleged 
understanding between the plaintiff and the Lurches about this In- 
surance was first had, and when it was first effected, the latter were 
not the agents of the défendants for any purpose, and what followed 
thereafter was in strict conformity with what had been done. But it 
is not worth while to refine on this point. The Lurches were evi- 
dently acting for themselves in this matter. They were not under 
any légal obligation to hâve thjs property insured for the benefit of the 
plaintiff, and if they voluntarily did so, it was in fact for their own 
benefit rather than his. In such case, if the property was destroyed 
by fire, they would so far pay their debt with the insurance, and the 
plaintiff would get nothing but what he was otherwise entitled to, and 
they might be otherwise able to pay. 

Before commencing this suit this plaintiff brought an action at 
law in this court, on this policy, as it is, claiming an insurable in- 
terest in the property, as a judgment creditor of the Lurches, and, on 
a demurrer to the complaint, the court held that he had such an in- 
terest, but he could not recover unless it also appeared that the 
debtor had not other property sufficient to satisfy the judgment. S 
Sawy. 618 ; [S. G. 15 Fed. Ebp. 707.] The plaintiff did not amend his 
complaint so as to make this allégation, as he certainly would if he 
could; and the only inference is that he suffered no loss by the fire 
and was not benefited by the insurance. But another sufficient an- 
swer to this claim is that the Lurches could not act as the agents of 
the défendants in this matter of the insurance of their ûwn property 
for either the direct or indirect benefit of themselves. The law bas 
too much regard for the infirrhity of hnman nature to allow a person 
to be subject to the temptation of acting as an agent in a matter in 



SPÀRE V. HOME MUT. INS. 00. 1& 

which he bas an înterest adverse to his principal. The law, dealing 
vfith the average integrity and disinterestedness, wisely assumes that 
no man can faitbfully serve two masters, whose interests are in con- 
flict. Story, Ag. §§ 9, 10, 210, 211; 4 Kent, 438. 

Assuming, then, that the Lurches were acting for themselves and 
not the défendant, because as a matter of fact it appears they were 
80 acting, and because, as a matter of law, they could not act other- 
wise, what possible ground is there for the claim that this policy 
does not truly state the contract of the parties? None whatever. 
The Lurches applied in writing to hâve this property insured as 
that of the plaintiff, and the défendant knowing nothing to the con- 
trary, accepted the application and issued the policy aecordingly. 
The minds of the parties met on this proposition and no other. But 
it was essentially false; and as soon as the défendant ascertained 
that the Lurches had misrepresentod the matter and attempted to 
vrocure an insurance on their own property, substantially for their 
own benefit, in the name of Spare, it refused to be bound by the con- 
tract, as it had a right to, both under the gênerai law and the ex- 
press stipulation of the policy, and offered to return the premium. 

A party seeking to hâve a mistake in a written instrument cor- 
rected must show exactly in what the mistake consists. It must be 
a mutual mistake whereby both parties hâve, in fact, done what nei- 
ther intended. And the évidence must be sufficient to prove this 
satisfactorily — to a moral certain ty. Brugger v. State Ins. Co. 5 Sawy. 
310. There was no mutual mistake hère. There was, indeed, in the 
proper sensé of the term, no mistake at ail. The défendant was de- 
ceived by the deliberate misrepresentation of the Lurches as to the 
ownership of this property, whereby, according to the testimony of 
its manager, it was misled to accept a greater moral hazard than it 
was aware of or otherwise might hâve done. For this reason the de- 
fendant had a right to rescind the contract or treat it as null, inde- 
pendent of the clause in the policy making it void on that account. 

There is still another point made by the plaintifif, and that is a 
subséquent waiver of the misrepresentation by the défendant. The 
Lurches testify that during the year 1881, and after this policy was 
issued, Bush was at Cottage Grove, and in conversation with them 
leamed that the warehouse was not the property of Spare, but of the 
Lurches, whereupon he called their attention tothe ipregularity, but 
said, as they were the agents of the défendant, it might stand so 
until the next year, when it must be oorrected. The time, oircum^ 
stances, and détails of this alleged conversation are very vagaely aaà: 
conflictingly stated by the Lurches, while the whple story is flatly 
and explicitly oontradicted by Bush, who also swears positively that 
he was was not at Cottage Grove from Mareh 11, 1881, to February 
16, 1882. Without stopping to consider the légal effect of such a 
conversfttion or understanding, or the power or authority of Bush to 
thus validate a void contract, it is sufficient to ea; that the burdea 



20 FEDERAL REPORTER. 

of proof is on the plaintiff to establish the fact, and that in my judg- 
ment it is net proven that the conversation ever occurred. 

There must be a decree dismissing the bill for want of equity, and 
for costs for the défendant. 



Wells, Fargo & Co. v. Orbgon Ey. & Nat. Go. 
(Oireuit Court, D. Oregon, January 25, 1884.) 

1. ExPKBSs Faciuties. 

Whether an expresa company doing business over a line of railway or steam- 
boats is entitled to the services of the pursers and conductors thereon, as ita 
messengers, dépends on oircumstances ; but when one express company doing 
business overany such line of transportation is ailowed such service, the same 
thereby becomes an express facility, as to ail other express companies doing 
business thereon, and cannot lawfully be wilhheld from them. 

2. Injonction to be Obbted. 

When a party to an injunction doubts its estent or slgniflcance, he oughtnot 
to disobey or disregard it, with a view of testing it in this particular, but he 
should apply to the court for a modification or construction of it. 

3. PONISH-MENT FOR CONTEMPT. 

In a proceeding for oontempt between the parties to a suit for disobedience 
to an injunction, cauaing a pecuniary loss or injury to the party instituting the 
proceeding, the court, in imposing punishment upon the wroiig-doer, may do 
80 for the benefit of ihe party injured. ' 

Proceeding for Oontempt in the Violation of an Injunction. 

M. W, Pechheimer, for piaintifE. 

Bu/us Mallory and Byron C. Bellinger, for défendant. 

Deady, J. On December 11, 1882, plaintifiE commenced a suit in 
thia court to compel the défendant to allow and furnish it express 
facilitiea on its lines of transportation; and on March 19th, after a 
hearing on the bill, an injunction was ailowed requiring the défend- 
ant to furnish the plaintiff such facilitiea on and over its lines of rail- 
way and steam navigation as it then was and had been doing before 
the commencement of the suit and upon the same terms. On No- 
vember 20, 1883, the plaintiff filed a pétition in the cause, verified 
by the oath of ita superintendent, Mr. Dudley Evans, asking that the 
manager of the défendant, Mr. C. H. Prescott, and certain of its 
pursers and conductors, be ordered to show cause why they should 
not be punished as for contempt, for not obeying said injunction as 
therein alleged. The pétition and affidavits in support of it show 
that at and before the allowance of said injunction and since, the de- 
fendant waa and ia the owner and operator of two certain steam- 
boata, then and now plying on the Columbia river, between Portland 
and Aatoria and way porta, and alao a certain steam-ship plying be- 
tween Portland and San Francisco, as well as the lesaee and opera- 
tor of a certain narrow gauge railway running from White Station to 



WELLS V. OSBQOK ST. « MAV. OO. 21 

Sheridan and Airlie, in Oregon; that until October 1, 1883, the de- 
fendant allowed the plaintiff to hâve the services of pursers and con- 
ductors on said vessels and road, to take charge of its treasure-box 
and letter-bag, and deliver and receive ali matter transported therein, 
as its agents and messengers along the routes traveled by them, for 
whieh it bas and is willing to pay a reasonable compensation and 
indemnify the défendant against any loss by reason of the carriage 
of such express matter; and that since said date the défendant had 
refused to allow or furnish the plaintiff thèse faeilities, contrary to 
the injuncfcion herein, and notwithstanding it is furnishing the same 
to the Northern Pacific Express Company, a corporation, the stock 
of whieh is largely owned by the persons who oontrol the défendant. 

The order was made as asked for, and on December 4th the man- 
ager of the défendant answered for it and himself, admitting the 
facts alleged in the pétition, and stating that he did not understand 
that the défendant wasrequired bythe înjunctionto allow its pursers 
and conductors to act as the agents and messengers of the plaintiff; 
that acting upou this impression and the advice of counsel that such 
services were not included in the injunction, and were not express 
faeilities anyhow, he had direeted the pursers and conductors of the 
défendant not to act as the agents and messengers of the plaintiS; 
and that the respondent did not intend to violate or disobey the in- 
junction of the court. Only two of the pursers and conductors — G. 
A.. Gould, of the narrow gauge, and John B. Maynard, of the steam- 
ship Columbia — appear to hâve been served with the order to show 
cause, and they answered jointly, saying that the injunction was not 
served on them, and they were not aware of its terms, and did not 
suppose that it required them to act as agents of the plaintiff, but 
that jn refusing to do so they did not intend to disobey the injnnc- 
tion, and were simply acting in obédience to the orders of their su- 
perior. 

The scope and meaning of the phrase ''express faeilities" does not 
admit of absolute définition. Its force and effect must often dépend 
on cireumstances, of whieh local usage, the conduet, and conven- 
ience of the parties may be important considérations. For instance, 
take the service whieh the plaintiff claims at the hands of the purser 
of the steam-ship. It consists simply of receiving the plaintiff's 
treasure-box and letter-bag in his office, on the vesseï, and putting it 
in the safe and keeping it there until the arrivai of the vessel at 
Portland or San Francisco, as the case may be, and there deliver- 
ing the same, on board, to the agent of the plaintiff. Tbereby the 
défendant incurs neither expense nor risk, and the plaintiff saves the 
hire and transportation of a spécial agent between thèse ports. 
The inconvenience to the défendant is nothing, while the inconven- 
ience to the plaintiff is very considérable. It is an arrangement 
whieh commends itself at once, as reasonable and well calculated to 
p]:omote the conduot of the business in whieh the parties are engaged, 



22 FEDBBAL BBPOBTEB. 

namely, the transportation and delivery of parcels wîth certaînty and 
celerity on the one hand, and the furnishing the means and conven- 
iences for so doing on the other. 

And it is not apparent on what ground the défendant can reason- 
ably refuse this facility, unless it desires to impede rather thau pro- 
mote the plaintiff's business, which is contrary to its duty and obli- 
gations as a oommon-carrier. While the plaintiff was the only Com- 
pany doing business on the defendant's routes, it was furnished this 
facility as a màtter of course. It was mutually profitable. Under 
the circumstances, the défendant could fumish it much cheaper than 
the plaintiff could Bupply it, That it was the proper and oonvenient 
thing to do, seems then not to hâve been questioned. But when a 
rival corporation enters this field to compete with the plaintilï in the 
express business, the défendant withdraws this facility from the lat- 
ter, and extends it to the former. The only reasonable explanation 
of this oonduct is that the défendant intends to favor the one Com- 
pany, which is in fact itself or its near ally in interest, and hinder 
the other in the conduct of its business. The same may be said of 
the services of the conductors on the narrow guage road. Presum- 
ably the business thereon is so light that it is a burdensome expense 
to send a spécial messenger over the road with the express matter, 
while the duties of the conduotor are so inconsiderable that he can 
attend to it as well as not, 

The injunction requires the défendant to fumish the plaintiff with 
the express faeilities that it was allowed at and before the filing of 
the biîl; and this facility, as we hâve seen, was one of them. If, 
however, the défendant or its manager thought that this was such a 
facility or convenience as it ought not, under the circumstances, to 
be required to fumish, and would not if the court's attention was 
specially called to the matter, he should hâve applied for a modifi- 
cation of the injunction in this respect, and not hâve nndertaken to 
disregard it, with a view of testing the matter or ol- wise, The 
merit or propriety of the injunction is not open to considération 
in this prooeeding. It is the duty of ail the parties to obey the in- 
junction until it is set aside or modified, Graig v. Fisher, 2 Sawy, 
345. As it is, the respondenta are clearly guilty of a violation of the 
injunction, and are liable to be punished as for a contempt, regard- 
less of the question whether this service is one which the défendant 
ought to fumish the plaintiff as an "express facility" or not. But 
even if the défendant had never furnished the plaintiff with this 
facility, and even if it is not, under the circumstances or otherwise, 
an absolute express facility, yet the défendant bas by its conduct, ao 
far made it one that it is bound, both by the terms of the injunction 
and its duty and obligation as a common carrier, to fumish it to the 
plaintiff, Having voluntarily furnished the Northern Pacific with 
this convenience in the transaction of its business, it cannot refuse it 
to WeUs, Fargo & Co, In giving this convenience to the one com- 



WELLS V. OREOON BY. & NAV. 00. 33 

pany doing an express business over its lînes of transpoitation, the 
défendant, as to ail other companies doing such business thereon, 
bas thereby made it an absolute express facility, to whicb ail are 
equally entitled. As was said in Wells v. 0. & G. Ry, Go. 18 Fed. 
Eep. 672, 

"The défendant is bound to furnish the express company with reasonable 
facilities for the coiiduet of its business, and if there is more than one com- 
pany doing business over its road it must furnish equal facilities to ail. To 
deal fairly and justly in this respect, and according to its obligation, the de- 
fendant must serve the express companies equally, and neither dlrectly nor in- 
directly favor the one nor hinder the other. Whatever terms or favors it ex- 
teuds to one, it must extend to the other, because that other becomes thereby 
entitled to them. No discrimination can be allowed; but equality of service, 
conditions and compensation is the fundamental rule governing the business 
or transaction." 

This case is also referred to generally as authority in the premises. 
The two cases are in principle, if not in instance, exactly alike. Dis- 
obedience to an injunction is a contempt of court which may be pun- 
ished by fine or imprisonment. Atlantic O. P. Go. v. Dittmar P. M. 
Go. 9 Fed. Eep. 316; section 725, Eev. St. Eithèr the corporation 
committing the contempt may be punished, or the agent through 
whom it acts. U. S. v. Memphis é L. R. R. Go. 6 Fed. Eep. 237. 

The purser and eonductor are discharged. It does not appear that 
they were ever served with the injunction or made aware of its terms 
in this respect. The défendant corporation and its manager are ad- 
judged to be guilty of a contempt, as alleged in the pétition herein, 
by the violation of the provisional injunction heretofore issued in 
this case in pursuance of the order of this court made and entered 
on March 19, 1883. But as this is a prooeeding between the parties 
to the suit, having a remédiai purpose rather than a punitive one, 
the matter will now be referred to the master to ascertain wbat loss, 
expense, or injury the plaintiff has sustained by reason of the mis- 
conduct of the défendant, with a view of enabling the court to im- 
pose, by way of punishment, a corresponding penalty on the défend- 
ant for the benefit of tbe plaintiff; and as to any further prooeeding 
the matter is continued untU the coming in of the master's report. 
Graig v. Fisher, supra; Fischer v. Hayes, 6 Fed. Eep. 63; Macàulay v. 
Whitè S. M. Go. 9 Fed. Eep. 698; In re Mullee, 7 Blatehf. 23. 



2é FBDEBAL BBFOBTEB. 

Ceoswell V. Mercantile Mut. Ins. Co. 

{Oireuit Court, D. Minnesota. January, 1884.) 

MAErNB Insubance — Description of Vessel. 

Where an insurance certificate, issued under a policy of marine insurance, 
described the goods as "shipped on board of the Great Wostera Steam-ship 
Company," heid that shipment upon a vessel not owned by the company, but 
chartered by it and placed upon its Une as one of its vessels, satisfied ihc terms 
of the contract. 

Stipulation ia filed waiving a jury. On March 8, 1879, the plain- 
tiff shipped a quantity of flour, by through bill of lading, from Minne- 
apolis to Bristol, England. He applied to an insurance agent in Min- 
neapolis, who gave him a certificate insuring him to the exteut of 
$1,100. The certificate is in the following form : 

"Insurance Certificate, 
"$1,100, Gold. No. 63,203, 

"Office of the Mercantile Mutual Insukance Company, 

"New Yoek, March 8, 1879. 

"This is to certify that on the eighth day of March, 1879, this company 

insured under policy No. 135,723, dated 187-, and made for H. J. 

G. Crosswell, dollars in gold, on three hundred and twenty (320) 

sacks of flour, valued at eleven hundred dollars, shipped on board of the 
Great Western Steam-ship Company, at and from Minneapolis to Bristol, 
England; and it is hereby understood and agreed that in case of loss, such 
loss is payable to the order of Chamberlain, Pôle & Co. on surrender of this 
certificate. 

"This certificate represents and takes the place of the policy, and conveys 
ail the rights of the original policy-holder (for the purpose of collecting any 
loss or claim) as f uUy as if the property was covered by a spécial policy direct 
to the holder of this certiflcate, and free from any liability for unpald premi- 
ums. 

"C. J. Pespaed, Secretary. A. W. Montgomy, Jk., Président." 

Indorsed on the side: 

"Not valid without the counter-signatuve of agent. 
"S. S. Eaton. 

"Notice. To eonform with the revenue laws of Great Britain, in order 
to coUect a claim under this certificate, it must be stamped within,«ixty days 
after its receipt in the united kingdom." 

The Mercantile Mutual Insurance Company had issued a running 
policy to S. S. Eaton, of St. Paul, and given him blank certificates 
to fill up when a risk was taken. He was its agent, with full author- 
ity to act. The running or open policy to Eaton, on account of whom 
it may concern, is dated March 16, 1878, and did not restrict insur- 
ance on marchandise to or from any particular ports, nor prohibit 
the insurance upon any particular vessel or vessels. The flour was 
shipped on the steamer Bernina, rated "A No. 1," which had been 
recently charted by M. Whitwill & Son, promoters and owners of the 



OROSWELL V. MBECANTILE MOT. INS. 00. 20 

Great Western Steam-ship Line, and was lost, with ail on board, on 
the outward trip. Suit is brought to recover amount of Insurance. 

Warner é Stevens, for plaintiff. 

Young é Lightner, for défendant. 

Nelson, J. This action is brought on a marine însurance policy 
to recover for loss of flour shipped from Minneapolis to Bristol, Eng- 
land. The insurance was effeoted on a running policy to the defend- 
ant's agent in St. Paul, and the blank certificate of the amount of 
the insurance issued by the company, and indorsed by the persons 
therein named, was fiUed up by an insurance agent in Minneapolis, 
to whom -the shipper applied. The certificate déclares the goods are 
"shipped on board of the Great Western Steam-ship Company," with- 
out naming any particular vessel, and the spécial policy which forms 
a part of the certificate adds, "or by whatever other name, or names, 
the said vessel * * * is or shall be named or called." No name 
of the vessel on board of which the freight was laden being named in 
the policy, the question arises, which, in my opinion, is décisive of 
the case, does the contract confine the risk to a shipment on board 
vessels owned by or constituting the Great Western Steam-ship Com- 
pany' s line at the date of the policy? The shipment was made on 
board the steam-ship Bernina, chartered by the steam-ship company 
and placed in the line as one of its vessels. This was its first voyage. 
The shipper, when notified that the flour was laden on this vessel, an 
extra one of the line, reported the fact to Ames, the insurance agent 
who had filled up and given the certificate, and was told by him in 
substance that it would make no différence about the insurance if the 
vessel was the equal of others in the line. It may well be urged, un- 
der ail the circumstances, that Ames, who was intrusted with the 
blank certificates, and authorized to fiU them up and take risks, rep- 
resented the insurance company, and that his assent binds it; but 
in the view entertained it is not necessary to so décide. The name 
of the vessel and the voyage should be correctly given, accordmg to 
the terms of the policy, and, ordinarily, when the shipper résides at 
the port of shipment, or can consult the officers of the insurance com- 
pany it is done; so that, before concluding the contract, it may hâve 
ail the data with which to fis the rate of premium. In this case the 
shipper resided far away from the seaport, and by this contract fae 
was enabled to insure his flour on the présentation of a through bill 
of lading, it being impossible to designate and name in the policy the 
particular vessel. No deceit has been practiced, and there can be 
no préjudice to the insurance company unless this vessel was so un- 
seaworthy, or of a class rated less than the vessels owned by or run- 
ning in the Great Western Steam-ship Company's line prier to this 
voyage. 

It is claimed that the premium is greater upon chartered vessels 
not belonging to a regular line, and testimony has been introduced 
apparently sustaining this position. I think, however, when we look 



Ô6 



TECEBAL BSPOBTEa 



at the policy and the manner in which the insurance was taken, the 
name of the vessel bas little to do with the risk, and I do not see the 
mischief supposed to resuit in this case. It is true the rate of pre- 
mium dépends upon the character of the vessel, the port of destina- 
tion, the season of the year, and circumstances tending to increase or 
diminish the hazards, but I do not think the circumstances in this 
case, that the vessel had been chartered and recently brought into 
the Une, was calculated to increase the risk. If she was fully equal 
to the other vessels in the class, and had efficient offioers and a com- 
pétent crew, the degree of hazard is not greater, The évidence is 
complète and conclusive on thèse points. But the language of the 
certificate does not limit the shipment on vessels at that time com- 
prising the line. For anything appearing to the contrary, the Com- 
pany could sell out ail its vessels and purchase or charter new ones, 
and operate them, and the shipment on a vessel of the line thus eon- 
structed would satisfy the terms of the policy. The only restriction 
is that the flour must be laden on some vessel of the line of the 
Great Western Steam-ship Company. This is a reasonable con- 
struction of the contract, and the testimony of the officers of this and 
other insurance companies about the increase of hazard upon char- 
tered vessels, cannot affect itstermsand conditions. 

Judgment for plaintiff for amount claimed in proof of loss, with 
iuterest and costs. 



In re Eobb. 
{Circuit Court, D. Oaliforma. January 19, 1884.) 

1. FcQiTmss FKOM Justice Arbestbd and Rbtuknbd undeb Lawb op th» 

Ukitbd States. 

The governor of a state, in isauing a warrant for the arrest of a fugitive from 
justice, the ofiBcer who makes the arreat, and the party commissioned to receive 
the fugitive and deliver him to the authorlties of tlie state in which the offense 
is charged to hâve been comniitted, in pursuance of the provisions of sections 
6278 and 5279 of the Revised Statutes, act under the autliority of the laws of 
the United States, and pro hac vice are officers or agents of the United States. 

2. Writ ov Haebab Oohpus— Juribdiction. 

Where a pétition for a writ of habeas corpus presented to a state judge or 
court by a party in the custody of one claiming, in good faith, to be autliorized 
to deliver him to the authorities of another state, as a fugitive from justice, 
in pursuance of the provisions of said sections, shows upon its face that the 
petitioner is so held in custody under such claim made in good faith, the state 
judge or court has no jurisdiction to issue the writ. The jurisdiction in such 
case is exclusively in the courts of the United States. 
8. Samb — DaTï OF Cdstodian. 

Where a writ of habeas corpus has been issued by a state judge or court, and 
been served on the party having the custody of such alleged fugitive, it is the 
duty of such custodian to make full return to the writ as to the authority un- 
der which he holds the prisoner, and to exhibit to the court the original papers 
evidenoing his authofity, and respectfully décline to produce the body of the 
prisoner; and if it appears from said return, or said pétition and return, that 



IN BB ROBB. ' 27 

the prisoner is clalmed to he held in good faith, in pursuance of the provisions 
of said statute, the judge or court issuing the writ has no jurisdiction or au- 
thority to proceed further, and no jurisdiction or authbrity to compel the pro- 
duction of the body of the prisoner, or to commit the party holding him for 
contempt in thus respectfully declining to produce the prisoner. 
4. Same— Effect of Production of Pbisoner. 

The efEect of the production of the prisoner would be to place him in the 
physical control of the court, and to deprive the agent of ail power to exécute 
the superior commanda of the laws of the United States, to which he owes 
obédience. 

Application for a Writ of Habeas Corpus. The opinion states the 
facts. Before Sawyer and Sabin, JJ. 

Alfred Clarke, for the petitioner. 

J. D. Sullivan, Dist. Atty. for the city and county of San Fran- 
cisco, for eheriff. 

W. M. Fitzmaurice, of counsel. 

Sawyee, J. W. L. Eobb filed his pétition in the circuit court for 
a writ of haheas corpus, in which he states : 

"That he is unlawfuUy imprisoned, detalned, conflned, and restrained of 
his liberty by P. Connolly, sherifE of the city and county of San Francisco, 
at the city and county of San Francisco, in the state of California; that 
the said imprisonment, détention, confinement, and restraint are illégal; and 
that the illegality thereof consists in this, to-wit, that petitioner is the duly 
appointed agent of the state of Oregon to convey to said state Charles H. 
Bayley, a fugitive from justice from said state, who is in the custody of this 
petitioner under a warrant issued by the governor of California, a copy of 
which warrant is hereto annexed and made a part of this pétition; that on 
the twenty-flrst day of November, 1883, this petitioner was served with a 
writ of habeas oorptts from the superior court of the city and county of San 
Francisco, commanding him to produce in said court said Charles H. Bayley; 
that petitioner respectfully informed said court by his return that he held 
said Bayley under the authority of the United States, and ref used to produce 
said Bayley, and said superior court committed petitioner therefor for an 
alleged contempt of its authority. Wheref ore, petitioner is m custody for an 
act done in executing a law of the United States, and for refusing to do an 
act eontrary to a law of the United States." 

The warrant annexed to the pétition and made a part thereof is 
the same, a copy of which, with the retuni thereon, is hereinafter set 
out in the commitment as a part of the judgment for contempt. 

A writ of habeas corpus having been issued according to the prayer 
and duly served, P. Connolly, sheriff, on January 11, 1884, made 
return as follows : 

"Now cornes P. Connolly and makes this his return to the within writ, 
and shows that he holds the within named W. L. Robb under a commitment, 
a copy of which is hereto annexed and made a part hereof. 

"P. Connolly, 
"SherifE City and County of San Francisco. 
"By M. F. CuMMiNGS, Under SherifE. 
"Dated Tanuary, 11, A. D. 1884." 

The following is a copy of the commitment annexed to the return : 

"In the superior court of the city and county of San Francisco, state of 

California, Department No. 1, Wednesday, November the 2l8t, A. D. 1883. 



28 7XDEBAL BSPOBTEB. 

Présent, Hon. T. K. "Wilson, judge. In the matter of the application of 
Charles H. Bayley for a writ of habeas corpus. 

"The application of Charles H. Bayley for a writ of habeas corpwt coming 
on regularly to be heard, and it appearing to my satisfaction that a wiit of 
habeas oorpiis was duly and regularly. issued, directed to and served upon 
one W. L. Eobb, commanding liim, the said "W. L. Robb, to hâve and pro- 
duce before me, the undersigned, one of the judges of the superior court of 
the City and county of San Traucisco, at the court-room of Department No. 1 
of said court, at the hour of half past one o'clock p. m. of said day, the body 
of Charles H. Bayley, and at the time and place last aforesaid. 

"ïhe said W. L. Eobb appearing by his counsel and submitting hls return 
to said writ, from, whioh it appears that ths said W. L, Robb holds the said 
Charles H. Bayley under the authority of the United States under and by 
virttie of thefollowing warrant: 

"'8tate of Califomia, executive department. [Vignette.] The people of 
the State of California, to any sherifif, constable, marshal, or polieeman of 
this state, greeting: 

" ' Whereas, it has been represented to me by the governor of the state of 
Oregon that G. H. Bayley stands charged with the crime of embezzlement, 
cornmitted in the county of Clatsop, in said state, and that he has fled from 
the justice of that state, and has taken refuge in the state of California; and 
tlie said governor of the state of Oregon having, in pursuance of the consti- 
tution and laws of the United States, demanded of me that I shall cause the 
said C. H. Bayley to be arrested and delivered to W. L. Robb, who is author- 
ized to reçoive him into his custody and convey him back to the state of 
Oregon; and, whereas, the said représentation and demand is accompanied 
by a certified copy of the information flled in the office of the justice of the 
peace of the precinct of Astoria, Clatsop county, state of Oregon, whereby 
the said C. H. Bayley stands charged with said crime and with having fled 
from said state and taken refuge in the state of California, which is certified 
by the governer of the state of Oregon to be authentic; you are, therefore, 
required to arrest and secure the said C. H. Bayley wherever he may be found 
within this state, and to deliver him into the custody of the said W. L. Kobb, 
to be taken back to the state from which he fled, pursuant to the said réqui- 
sition, he, the said W. L. Eobb, defraying ail costs and expansés incurred in 
the arrest and securing of said fugitive. You will make return to this de- 
partment of the manner in which this warrant has been executed. 

" • In witness whereof I hâve hereunto set my hand and caused the great 
seal of the state to be affixed this the twentieth day of November, in the year 
of our Lord one thousand eight hundred and eighty-three. 

" ' [Seal] George Stoneman, 

" ' Governor of the State of California. 
"'By the governor: 

'"Thos. L. Thompson, Secretary of State.' 

" 'San Feanoisoo, Cal. 
'"I hereby certify that I hâve this day arrested the within-named C. H. 
Bayley, and delivered him to "W. L. Eobb, as herein demanded. 
'"November 20, 1883. P. Ckowley, Chief of Police.' 

"And the said W. L. Eobb has in his custody and possession the body of 
the said Charles H. Bayley, and is able to and can produce the said Charles 
H. Bayley before me at the time and place speeifled in and in accordance with 
the directions contained in said writ; and it further appearing that the said 
W. L. Eobb willfuUy neglects and refuses to obey said writ of habeas corpus 
or to hâve or produce the said Charles H. Bayley before the undersigned as 
Bbove mentioned, and that no good or sufflcient cause haa been shown or ex* 



m BE BOBB. 29 

ists for said refusai, it is therefore ordered and adjudged that the sait? 
W. L. Bobb is guilty of contempt of this court, in refusing to obey said writ 
of habeas corpus, and refusing to liave and produce the body of Cliarles H. 
Bayley before me at the time and place specified in said writ; and further 
ordered tiiat the sheriff of the city and county of San Francisco do forthwith 
arrest the said W. L. Kobb, and confine him in the county jail of the city and 
county aforesaid until he, the said W. L. Eobb, obeys said writ and produces 
the body of the said Charles H. Bayley before me, or until he be legally dis- 
charged. 

"Griven under my hand-this twentv-flrst day of November, 1883. 

"T. K. WÎlsun, 
"Judge of Superior Court of the City and County of San Prancisco, Cal." 

At the hearing, a copy of the record of proceedings in the superior 
court, in which the judgment and commitment for contempt were had, 
was put in évidence, and it was agreed by oounsel tbat this was the 
authority under whieh petitioner, Eobb, is restrained of his liberty. 

The record shows : 

(1) A pétition to T. K. Wilson, judge of the superior court of the 
oity and county of San Francisco, for a writ of habeas corpus by Charles 
H. Bayley, in which he allèges : 

"That he is unlawfully iinprisoned, detained, coniined, and restrained of 
his liberty by W. L. Robb, at the old city hall, in the city and county of San 
Francisco, in the stateof California. That the said imprisonment, détention, 
confinement, and restraint are illégal; and that the illegality thereof con- 
sists in this, to-wit, that petitioner is held under a warrant of arrest, a copy 
of which is hereto annexed and made a part hereof, That said warrant is 
issued without anthority of law and against the law in this, that no copy of 
anindictment found, or affidavit made, before a magistrale, charging petitioner 
with any crime, has boen prodiiced to the goveruorof California." 

The warrant of arrest issued by the governor of California, annexed 
to and made a part of the pétition, is the same warrant hereinbefore 
set ont as a part of the judgment and commitment for contempt, and 
the return of P. Crowley, cbief of police, indorsed thereon, and need 
not be repeated. 

(2) A writ of habeas corpus,-m the usual form, addressed to W. L. 
Eobb, requiring him to produce the body of said Bayley, etc. 

(3) The return to the writ made by said Eobb, petitioner herein, 
which is as follows : 

"In the superior court of the city and county of San Francisco, state of 
CaHfornia. Ex parte Charles H. Bayley. Habeas corpus. 

"Now cornes W. L. Eobb, and makes this his return to the annexed writ, 
and shows that he holds the within-named prisoner under the authority of 
the United States, as will more fuUy appear on inspection of the warrant of 
the governor of California and a commission from the governor of Oregon, a 
copy of which is hereto annexed and raade a part hereof, and the originals 
produced. lîespondent respectfnlly refuses to produce said C. H. Bayley, on 
tlie ground that under the Iiisvs of the United States heought notto produoe 
said prisoner, because the honorable superior court hasnopower or authority 
to proceed further in the promises. W. L. Eobb. 

"Subscrlbed and sworn to before me this twenty-flrst day of November, 
1883. J. F. Cabpbntek, Deputy County Clerk." 



30 I^DSBAIi BEPOBTEa 

The warranfi of the governor oî California, arinexed to said return 
and made a part thereof, is the same hereinbefore iset out as a part 
of the judgment and commitment for contempt, and the return of P. 
Crowley, chief of police, indorsed thereon. The commission of the 
governor of Oregon, also annexed to said return and made a part 
thereof, is as follows : 

"State of Oregon. [Vignette.] Executive department. To ail to whom 
thèse présents shall corne: 

"Know ye, that I hâve authorized and empowered, and by thèse présents 
do authorize and empower, WalterL. Robb to takeand receive from the proper 
authorities of the state of California one C. H. Bayley, fugitive from justice, 
and convey him to the state of Oregon, there to be dealt veith according to 
law. 

"In witness vrhereof, I hâve hereunto set my hand and afHxed the great 
seal of the state, at the city of Salem, this flfteenth day of November, in the 
year of our Lord one thousand eight hundred and eighty-three. 
"[Seal] (Signed) Z. Z. Moody, 

"Governor of the State of Oregon. 
"By the governor: 

"11. P. Eariiakt, Secretary of State." 

The original of said commission of the governor of Oregon under 
the seal of the state of Oregon, and the original of the said warrant 
of the governor of California under the seal of the state of California, 
were also produced and exhihited to the court at the time of making 
eaid return. 

The constitution of the United States provides that "a person 
charged in any state with treason, felony, or other crime, who shall 
flee from justice and be found in another state, shall, on demand of 
the executive authority of the state from \yhich he fled, be delivered 
up, to be removed to the state having junsdiction of the crime." 
Article 4, § 2. 

The last clause of section 8 of article 1 confers upon congress povyer 
"to make ail laws which shall be necessary and proper for carrying 
into exécution * * ♦ ^11 * * * powera vested by this con- 
stitution in the government of the United States." And article 11 
provides that "this constitution and the laws of the United States 
which shall be made in pursuance thereof * * * shall be the 
suprême, law of the land; and judges in every state shall be bound 
thereby, anything in the constitution or laws of any state to the con- 
trary notwithstanding," Thus, any laws passed by congress under 
those constitutional provisions for the arrest of fugitives from justice 
found in any state, and their delivery to the state from which they 
fled, are a part of the suprême law of the land, to which ail state 
laws upon the subject mast be subordinate. This power, like the 
power eonferred in the same section to return fugitives from labor, 
the power to regulate foreign and interstate commerce, to déclare 
war, raise armiea, provide for a navy, make peace, etc., it was 
thought ought not to be reposed in the states. State jealousies, and 



IN BE BOBB. 81 

diverse state interests and policies, might prevent the return of fugi- 
tives from justice and labor, and to guard against inconvenience in 
thèse matters, the power wae conferred upon the gênerai government 
over thèse sabjeots, and it is suprême. So, also, the constitution 
provided for courts to administer the laws of the United States. In 
pursuance of the provisions cited relating to the return of fugitives 
from justice and labor, congress, in 1793, passed an act for the re- 
turn of both classes of fugitives. 1 St. 302. Sections 1 and 2 of 
that act, relating to fugitives from justice, hâve been carried into the 
Revised Statutes of the United States, and constitute sections 5278 
and 5279, whieh, so far as applicable to this case,.read as foUows: 

"Sec. 5278. Whenever the executive àuthority of any state or territory de- 
mands any peraon, as a fugitive from justice, of the executive àuthority of auy 
state or territory to which such person has fled, and produçes a copy of an 
Indictment found, or an afBdavit made before a magistate of any state or ter- 
ritory, charging the person demanded with having committed treason, fel- 
ony, or other criïne, certified as authentic by the governor or chief raagistrate 
of the state or territory from whence the person so charged has fled, it shall 
be the duty of the executive àuthority of the state or territory to which such 
person has fled to cause him to be arrested and secured, and to cause notice 
to be given to the executive àuthority making such demand, or to the agent 
of such àuthority appointed to reçoive the fugitive, and to cause the fugitive 
to be delivered to such agent when he shall appear. 

"Sec. 5279. Any agent so appointed who receives the fugitive into his cus- 
tody shall he empowered to transport Mm to the state or territory frora whieh 
he has fled. And every person who, by force, sets at liberty or rescues the 
fugitive from such agent, while so transporting him, shall be flned not more 
than flve hundred dollars, or imprisoned not more than one year." 

When the governor of a state, aoting under this statute, upon the 
demand of the authorities of another state, issues his warrant for the 
arrest of a party charged with a crime, and that party is arrested by 
any proper officer, and delivered over to the party empowered by the 
state in which the offense was committed, to be carried to that state 
and delivered to its proper authorities, we hâve no doubt that the 
governor issuing the warrant, the officer executing it, and the party 
to whom he is delivered, are acting by virtue and under the àuthority 
of the act of congress, and no other, and pro hac vice are officers or 
agents of the United States. Ex parte Smith, 3 McLean, 129; Prïgg's 
Case, 16 Pet. 539. From the time of arrest till he is delivered to 
the authorities of the state demanding his surrender, the party is m 
the custody of the law, — and that law a law of the United States, 
and the suprême law of the land. In this case Bayley had been ar- 
rested upon a warrant issued by the governor of California, on a de- 
mand by the governor of Oregon, and delivered into the custody of 
the petitioner, Robb, who was duly oommissioned and authorized by 
the governor of Oregon to receive him and convey him to Oregon, 
whieh duty he was engaged in performing, in pursuance of the pro- 
visions of the act of congress, when he was served with the writ of 



32 FEDEBAL BSPOaTKB. 

habeas corpus from the superior court, to which he made the retura 
hereinbefore set out, stating that he held Bayley for the purpoae of 
conveying him to Oregon, under and in pursuance of the laws of the 
United States, by virtue of the commission from the governor of Ore- 
gon, and the warrant of arrest of the governor of California, and ar- 
rest under it, annexing thereto copies of said documents, and exhib- 
iting the originals, and respectfuUy declined to produce the body of 
Bayley on tbe expressed ground that, it appearing to the court that 
Bayley was in custody under the laws of the United States, the court 
had no jurisdiction to proceed further, or to require him to produce 
the body of said prisoner, 

The court took a différent view on this point, adjudged petitioner 
to be guilty of contempt in declining to produoe the body of Bayley, 
and to be imprisoned until he should comply with the commands of 
the writ in this particular. If the court, after being informed of the 
cause of restraint, had jurisdiction and authority to proceed further, 
and compel the production of the body of Bayley, notwithstanding 
the faets shown, then the judgment for contempt is lawful, and peti- 
tioner must be remanded ; but if it had no authority to proceed and 
compel the pi-oduction of the body of Bayley, then it had no -power to 
punish petitioner for contempt, and he could not be in contempt in 
not producing him, and the authority of the court to proceed is the 
question to be determined. As we understand the décisions, this 
very question has been distinotly determined by the suprême court 
of the United States, under oircumstances that eompelled the most 
deliberate and mature considération, in the cases of Ableman v. Booth 
and U. S. v. Booth, 21 How. 507. In the first case, Booth had been 
arrested for an offense against the laws of the United States, and 
held to answer by a court commissioner, and committed to the cus- 
tody of the marshal of the district. A justice of the suprême court 
of Wisconsin discharged Booth from custody on habeas corpus, on the 
ground that the act under which Booth was held was unconstitutional 
and void, and his action was affirmed by the state suprême court. 
Booth was then indicted and tried, and convicted in the United States 
district court for the district of Wisconsin, and sentenced to imprison- 
ment, whereupon the same justice of the suprême court of the state 
discharged him again on habeas corpus, on the same grounds as before ; 
which action was also affirmed by the suprême court of the state. 
This action of the justice of the suprême court, and of the suprême 
court of the state, was reversed by the suprême court of ,the United 
States, upon the ground that the court and justice were whoUy without 
jurisdiction to consider thèse matters. So earnest was the suprême 
court of Wisconsin in its détermination to maintain its authority 
that it even disobeyed the writ of the United States suprême court, 
commanding it to send up its record, and peremptorily ordered its 
clerk uot to send a transoript of the record, which order was obeyed ; 



IN BE BOBB. 83 

and th« cases were heard upon copies oî the records, permîtted by 
the suprême court to be filed, upon affidavits stating the facts. 

In discussing the powers of the state aad national courts, the court, 
epeaking by its chief justice, says : 

"If the judicial power exercised in this instance has been reserved to the 
States, no offense against the Jaws of the United States can be punished by 
their own courts without the permission and aecording to the judgment of 
the courts of the state in wMch the party happened to be imprisoned; for if 
the suprême court of Wisconsin possessed the power it has exercised in re- 
lation to offenses against the act of congres» in question, it necessarily fol- 
lows thât they must hâve the sanie judicial authority in relation to any other 
law of the United States; and, consequently, their supervising and control- 
ling power would embrace the whole criminal code of the United States, and 
extend to offenses against our revenue laws, or any other law intended to 
guard the différent departments of the gênerai government from fraud or 
violence. And it would embrace ail crimes, from the highest to the lowest, 
including félonies, which are punished wlth death, as well as misdemeanors, 
which are punished by imprisonment. And moreover, if the power is pos- 
sessed by the suprême court of the state of Wisconsin, it must belong equally 
to every other state in the Union, when the prisoner is within its territorial 
limits; and it is very certain that the state courts would not always agrée in 
opinion; and it would often happen that an act which was admitted to be an 
offense, and justly punished, in one state, would be regarded as innocent, 
and indeed as praiseworthy, in another. 

"It would seem to be hardly necessary to do more than state the resuit 
to which thèse décisions of the state courts must inevitably lead. It is, ot 
itself, a suflîcient and conelusive answer; for no one will suppose that a gov- 
ernment which has now lasted nearly seventy years, enforcing its laws by its 
own tribunals, and preserving the union of the states, could hâve lasted a 
single year, or f ulfllled the high trusts committed to it, if offenses against its 
laws could not hâve been punished without the consent of the state in which 
the culprit was found. 

" The judges of the suprême court of Wisconsin do not distinctly state from 
what source they suppose they hâve derived this judicial power. There eau 
be no such thing as judicial authority, unless it is conferred by a govern- 
ment or sovereignty; and if the judges and courts of Wisconsin possess the 
jurisdiction they claim, they must dérive it either from the United States or 
the state. It certainiy has not been conferred on them by the United States ; 
and it is equally clear it was not in the power of the state to confer it, even 
if it had atfempted to do so; for no state can authorize one of its judges, or 
courts, to exercise judicial power by habeas corpus, or otherwise, within the 
jurisdiction of another and independent government. ,And although the 
state of Wisconsin is sovereign within its territorial limits to a certain ex- 
tent, yet that sovereignty is limited and restricted by the constitution of the 
United States. And the powers of the gênerai government and of the state, 
although both exist and are exercised within the same territorial limits, are 
yet separate and distinct sovereignties, acting separately and independently 
of each other, within their respective sphères. And the sphère of action ap- 
propriated to the United States is far beyond the reach of the judicial proeess 
issued by a state judge or a state court, as if the line of division was traced 
by landmarks and monuments visible to the eye. And the state of Wis- 
consin had no more power to authorize thèse proceedings of its judges and 
courts than it would hâve had if the prisoner had been confined in Michigan, 
or in any other state of the Union, for an offense against the laws of the 
state in which he was imprisoned." 21 How. 514. 
v.l9,no.l— 3 



3é FBDBBAIi BEFO^IKB. 

Again: 

" Questions of this kind must always dépend upon the constitution and 
laws of the United States, and not of a state. The constitution was not 
formed merely to guard the states against danger from foreign nations, but 
mainly to secure union and harmony at home ; for if this objeet could be at- 
tained, there wonld be but little danger from abroad, and to accomplish this 
purpose it was felt by the statesmen who framed the constitution, and by 
the people who adopted it, that it was necessary that many of the rights of 
soTereignty, which the states then possessed, shouid be ceded to the gênerai 
government, and that* in the sphère of action assigned to it, it shouid be 
suprême and strong enough to exécute its own laws by its own tribunaîs, 
wifchout interruption from a state or from state authorities. And it was 
évident that anything short of this would be inadéquate to the main objecta 
for which the government was established; and that local interest, local pas- 
sions or préjudices, incited and fostered by individuals for sinister purposes, 
would lead to aets of aggression and injustice, by one state upon the rights of 
another, which would ultimately terminate in violence and force, unless there 
was a common arbiter between them, armed with power enough to protect 
and guard the rights of ail, by appropriate laws, to be carried into exécution 
peacefully by its judicial tribunaîs," 21 How. 516, 517. 

After showing the relation of the state and national courts to each 
other, and to the laws of the United States passed within the scope of 
the powers of the national government, the court, in language so olear 
and précise that it can not well be misunderstood, lays down the rule 
direotly apj)iicable to thîs case, as follows : 

"We do not question the authority of the state court, or judge, who is 
authorized 'ly the laws of the state to issue the writ of habeas corpus, to issue 
it in any case where the party is imprisoued within its territorial limits, 
provià'd it does not a-ppear, when the application is made, that, the person 
imprisc-ned is in custody under authority of the United States. The court, or 
judge. Las a right to inquire, in this mode of proceeding, for what cause, and 
and by what authority, the prisoner ia confined within the territorial limits 
of the state sovereignty. And it is the duty of the marshal, or other person 
having the custody of the prisoner, to make known to the judge or court, by 
a proper return, the authority by which he holds him in custody. This right 
to inquire by process of habeas corpus, and the duty of the officer to make a 
return, grows, neeessarily, ont of the complex character of our government, 
and the existence of two distinct and separate sovereignties within the same 
territorial space, each of them restricted in its powers, and e^eh, within its 
sphère of action, prescrîbed by the constitution of the United States, inde- 
pendent of the other. But, after the return is made, and the state judge or 
court Judicially a^prised that the party is in custody under the authority of 
the United States, they can proceed no further. They then know that the 
prisoner is within the dominion and Jurisdietion of another government, 
and that neithei' the writ of habeas corpus, nor any other process issued under 
state authority, can pass over the Une of division between the two sovereign- 
ties. He is tJien within the dominion and exclusive Jurisdiotion of the 
United States. If he has committed an offense against their laws, their 
tribunaîs alone eau punish him. If he is wrongfuUy imprisoned, their Ju- 
dicial tribunaîs can release him and afford him, redress. And although, as 
we hâve said, it ia the duty of tlie marshal, or other person holding him, to 
make known, by a proper return, theauthority under which hedetains him, it 
is at the same time imperatively his duty to obey the process of the United 
States, to hold the prisoner in custody under it, and to refuse obédience to 



m BB-BOBB. 35 

iM mandate or process of any other govemment. And, conseq'uently, it ta 
his duty not to take the priscmer, nor miffer Mm to be taken, before a state 
jvdge or court upon a habeas corpus ismed under state autkority. No state 
judge or court after they are Judicially irtformed that the party is impris- 
oned under the authority of the United States, has aiiy right to interfère with 
Mm, or to require Mm to be brought before them. And if the authority of 
a state, in the form of judicial process, or otherwise, should attempt to con- 
trol the marshal, or other authorized offl,cer or agetit of the United States, in 
any respect, in the custody of his prisoner, it would be his duty to resi-st it, 
and to call to his aid any force that might be necessary to maintain the 
authority of law against illégal interférence. No judicial process, whatever 
form it may assume, oan hâve any lawf ul authority outslde of the limits of 
the jurisdictioa of the court or judge by whom it is issued; and an attempt 
to enforce it beyond fhese boundaries is nothing less than lawless violence," 
2IH0W. 523. . 

This décision waa fully affirmed nearly 35 years afterwards, in 
Tarble's Case, 13 Wall. 397. Tarble had enlisted in the United 
States army, deaerted, and been arrested, and he was restrained of 
his .iiberty on that ground, by Lieut. Stone, in charge of the sta- 
tion. A writ of habeas corpus having been issued by a state commis- 
sioner having jurisdiction to issue snch writs, and served, Lieut. 
Stone made return that the petitioner had enlisted, deserted, and 
been eaptured, and he claimed to hold him rightfully as a soldier 
under the laws of the United States. It was replied that he was a 
minor under 18 years of âge ; that he had been inveigled into enlist- 
ing without the consent of his father, and that the enlistment was 
void, on this and other grounds set out, and it was claimed that the 
petitioner was unlawfully restrained of his Iiberty. The oommis- 
sioner took testimony, heard the case, and discharged him. The pro- 
ceedings of the commissioner were affirmed by the suprême court of 
Wiseonsin. The judgment of the state suprême court was subse- 
quently reversed by the suprême court of the United States, after an 
elaborate review of the questions involved, not on the ground that the 
state commissioner and court erred on the facts, or the unlawfulness 
of the imprisonment, but upon the ground that they had no right, or 
jurisdiction, to examine or détermine the question as to the lawful- 
ness of the imprisonment at ail, after the fact was brought to the at- 
tention of the court issuing the writ that the officer, in good faith, 
claimed to hold him under authority of the laws of the United States 
— that upon thèse facts appearing the jurisdiction was ousted. Said 
the court upon this question ; 

"State judges and state courts, authorized by laws of their states to issue 
writs of habeas corpus, hâve, undoubtedly, a right to issue the writ in any 
case where a party is alleged to be illegally conflned within their limits, wj- 
less it appear upon his application that he is conflned under the authority, 
or daim and color of the authority, of the United 8tates, by an officer of that 
govemment. If such fact appear upon the application, the writ should be 
refused. If it do not appear, the Judge or court issuing the writ has a right 
îo inquire into the cause of imprisonment, and ascertain by lohat auth^ority 
'lie person is Jiéld within the limits of the state; and it is the duty of the 



86 VBDSBAIt SEPOBTSB. 

marshal, or otfier offlcer havîng the <!ustody of the prisoner, to give, ly a 
proper return, information in this respect. His return should be aufflcient, 
ia its détail of tacts, to show distinctly that the imprisonment is under the 
authority, or daim and aolor of the authority, of the United States, and to 
exclude the suspicion of imposition or oppression on his part. And tlie pro- 
cess, or orders, under which the prisoner is held should be produced with 
the return, and submitted to inspection, in order that the court or judge is- 
suing the writ may see that the prisoner is held by the offlcer in good faith, 
under the authority, or claim and color of the authority, of the United States, 
and not under the mère prêteuse of having such authority." 

An attempt was made, tipon other authorities cited, to distinguish 
the case from Booth's cases, and to limit the application of the doc- 
trines established by tbem; but the court emphaticaily repudiated 
any such limitation, as appears by the following explicit language : 

"Some attempt has been made in adjudications, to which our attention has 
been called, to limit the décision of this court in Ahleman v. Baoth, and the 
United States v. Booth, to cases where a prisoner is held in custody under 
undisputed lawful authority of the United States, as distinyuished from his 
imprisonment under daim and color of such authority. But it is évident 
that the décision doesnot admit of any such limitation. It would liave been 
unnecessary to enforce, by any extended reasoniug, such as the ciiief justice 
uses, the position that when it appeared to the judge or offlcer issuing the 
writ that the prisoner was held under undisputed lawful authority, he should 
proceed no furthev. l^o fédéral judge, even, could, in such case, release the 
,party from imprisonment, except upon bail when that was allowable. The 
détention being by admitted lawful authority, no judge could set the prisoner 
at liberty, except in that way, at any stage of the proceeding. Ail that is 
meant by the language used is that the state judge or state court should 
proceed no further when it appears, from the application of the party, or 
the return made, that the prisoner is held by an qfioer of the United States 
under what,in truth, purports to be the authority ofthe United States; that 
is, an authority, the validity of which is to be determined by the constitution 
and laws ofthe United States. If a party thus held be illegaily imprisoned, 
it is for the covnts or judicial offlcers of the United States, and thoae courts 
or offlcers alone, to grant him release." 

The court concludes : 

"It follows, from the views we hâve expressed, that the court coramis- 
sioner of Dane county was without jurisdirtion to issue the writ of habeas 
corpus for the discharge of the prisoner in this case, it appearing, upon the 
application presented to him for the writ, that the prisoner was held by an 
offlcer of the United States under daim and color of the authority ' of the 
United States, as an enlisted soldier mustered into the military service of the 
national government ; and the same information was imparted to the eom- 
missloner by the return of the offiœr. The commissioner was, both by the ap- 
plication for the tarit and the return to it, apprised that the prisoner was 
within the dominion and jurisdiction of another government, and that no 
writ of habeas corpus issued by him could pass over the Une which divided 
the two sovereignties. The conclusion we hâve reaehed renders itunnecessary 
to consider howfar the déclaration of the prisoner as to his âge, in the oath 
of enlistment, is to be deemed oonolusive évidence on that point on the returr 
to the writ." 

Now, the case of the petitioner in this proceeding, except that th 
offioer or agent of the United States having Bayley in charge i 



IN EE HOBB, 37 

neither a judge, commissioner, nor military officer, actingunder the 
judieiary or military laws of the United States, but a person ex- 
pressîy authorized to aet by other statates of the United States, is 
precisely in the condition of TarUe's Case. The pétition of Bayley 
on its face showed that he was claimed, at least, to be held in custody 
in pursuance of the laws of the United States. It was so explicitly 
stated in the pétition, and a oopy of the warrant showing the author- 
ity was annexed to and made a part of the pétition for the writ; 
and this being so, if the doctrine asserted in the Booth and Tarble 
Cases is correct — and whether correct or not it is controlling in this 
court — then, in the language of the court in Tarble's Case, already 
quoted, the judge who issued the writ to the petitioner "was without 
jurisdiction to issue the writ of habeas corpus for the discharge of the 
pi-isoner in this case, it appearing, upon the application presented to 
him for the writ, that the prisoner was held by an ofîSeer" or agent 
"of the United States, under claim and color of authority of the 
United States," as a fugitive from justice, to be delivered over to the 
authorities of the state of Oregon. But if it were necessary to go 
further, the petitioner did exactly what the suprême court of the 
United States said he was bound to do under snch circumstances, and 
made return to the writ showing his authority, giving copies of his 
commission from the governor of Oregon, and warrant from the gov- 
ernor of California, and retui-n of the chief of police, and exhibited 
the originals under the seals of the respective states, his authority 
thus appearing upon the représentations of both the petitioner and 
the party restraining him of his liberty, and this state of facts satis- 
factorily appeared to the court, for the court itself so adjudged in its 
judgment for contempt. And the petitioner further did exactly what 
the suprême court of the United States said he must do — respectfully 
declined to produce the body of the prisoner. Portunately, he did 
not hâve occasion to go further, as the court said he must do, if nec- 
essary, and resist by ail the force at his command any attempt to 
compel a production of his body, other than to défend himself in the 
courts in response to the writ of haheas corpus issued to and served 
upon him, and in the proceedings for contempt now under considéra- 
tion. 

New, if it was lawful for petitioner to décline to produce the body 
of Bayley upon the facts disclosed to the court upon the face of the 
pétition itself, or upon the face of the pétition and the return made 
to the writ ; if it was lawful to resist by force, with ail the power at 
his command, any attempt to compel him to produce the body of the 
prisoner; if, upon the facts of the case appearing, as they did ap- 
pear, the judge had no jurisdiction to proceed further or examine at 
ail into the regularity of the proceeding under whieh Bayley was 
held, — ^then there certainly was no jurisdiction or lawful authority to 
force a production of Bayley through proceedings for contempt. The 
two propositions are incompatible, and their co-existence legally im- 



38 nSDEBlIi BSFOBTEB. 

possible. There îs strong reason for maintaîning this position. If a 
judge cf a state court — another sovereignty as distinct from the na- 
tional sovereignty as if it ruled over a différent terrritory — can, under 
the circumstances indicated, compel the production of a prisoner 
held under tho laws of the United States, — the suprême law of the 
land, — he has the physical power to discharge him when produced, 
however lawless the discharge may be, as was donc, in fact, in the 
Booth and Tarble Cases. The production of the body in court, by 
means of which the court bas the physical power to assume control, 
is équivalent to a surrender of a prisoner. And if one person can be 
discharged by a state officer, so can ail, and it would be impossible 
for the United States, in some contingencies, to discharge the duty 
imposed upon them by the national constitution relating to fugitives 
from justice, as well as to fugitives from labor, or to exécute th© 
laws of congress passed to give eflfect to those constitutional rights 
of the several states, as between themselves. It would be as di£&- 
cult to perform their duties as the suprême court in Booth's Cases 
said it would be to exécute the criminal laws of the United States 
under similar conditions. 

By producing the body as required by the writ, the petitioner nec- 
essarily places his prisoner within the control of the court issuing it, 
and deprives himself of ail power to perform the requirements of his 
commission, enjoined by the superior authority of the laws of the 
United States. He cannot, and he does not, owe a divided duty to 
two distinct sovereignties. He cannot serve two masters. He can- 
not produce his prisoner, which is équivalent to his surrender, in 
obédience to the commands of the writ of habeas corpus, and at the 
same time retain power to obey the mandate of the laws of the 
United States and deliver him to the authorities of the state of Ore- 
gon. He must obey one command or the other, and the command 
to be obeyed is the one which is superior or suprême in its authority. 
But whether thèse reasons and others given are sound or not, the 
rule as to the jurisdiction of the state courts, under the circum- 
stances indicated, appears to us to be clearly established by the high- 
est tribunal in the land, and are not open even to question hère, and 
cannot be disregarded by us. 

We are of opinion, under the authoritative décisions cited, that the 
judge of the superior court on the pétition of Bayley, as presented, 
had no jurisdiction to issue the writ, and certainly, upon the pétition 
and the return made to the writ by Eobb, that neither the judge nor 
the court over which he présides had jurisdiction or authority to pro- 
ceed further, or to compel the production of the body of Bayley, or 
to punish him for contempt for respectfuUy declining to produce the 
body under the circumstances of the case, in pursuauce of the com- 
mands of the writ. 

We should not hâve thought it necessary to go into the case so 
fuUy, or to hâve done anything beyond referring to the Booth and 



UNITED STATES V, UOOBE. 39 

Tarhle Cases, but we found ourselves in the délicate, embarrassing, 
and very unpleasant position of reaching a conclusion différent from 
that attained by the suprême court of the state in this case, for 
whose judgment we entertain the very highest respect. That tri- 
bunal held, on a writ of habeas corpus heretofore issued on pétition 
of Eobb, that the superior court had juriadiction and authority to 
compel petitioner, by imprisonment for contempt, to produce the body 
of his prisoner, Bayley, and remanded him to suffer the punishment 
adjudged by that court. In re Bobb, 1 Pac. Eep. 881. Had there beeii 
no décisions of the suprême court of the United States settlîng the 
question, as we conceive there are, we certainly should hâve hesitated 
long before declining to follow this ruling of the suprême court of the 
state. But where that court differs from the suprême court of the 
United States as to rights depending upon the statutes of the United 
States, overwhich the latter court bas final, jurisdiction, and we must 
follow one or the other, as we must do in this case, our duty is to 
yield obédience to the latter. As no référence is made to the Booth 
and Tarble Cases in the opinion of the suprême court of the state, those 
cases may not hâve attracted the attention of the court. 

The prisoner is entitled tp be discharged from imprisonment, and 
it is 60 ordered. 



United States v. Moore. 

{Disfriet Court, N. D, IlUnoia. November 20, 1883.) 

Sending Mattbb Concerning Lottkhies through the Mails— Decot Lbttebs. 
The offense of sending letters or ciroulars conceruing lotteries through the 
mails is complète under section 3894 of the Revised Statutes, althougb the cir- 
oulars in question are sent in reply to letters written by a détective, under a 
flctitious name, for no other purpose than to obtain évidence ol the commission 
of the offense. 

Indictment under Section 3894, Eev. St. 

J. B. Leake, U. 8. Dist. Atty., for the prosecution. 

A. S. Trude, for défendant. 

Blodgett, J., {charging jury.) The law under which this indict- 
ment is found provides that no letter or circular concerning lotteries 
shall be carried in the mails. The statute, as originally passed by 
congress, provided that no letter or circular concerning illégal lotter- 
ies should be-so carried. At that time a great many of the states in 
the Union had prohibited lotteries within their jurisdiction, while in 
others they were permitted ; and difficulty arose in the administration 
of this statute by reason of the contention that in some states lotter- 
ies were still légal, and therefore not within the scope of this act. In 
1876, congress, by an amendment of the statute, struck out the word 
illégal, so that the statute, as amended, now reads, that no letter or 



40 f EDEBAL IlJiPOIlTEB. 

circulât concerning lotteries shall be carried in the mails, thereby 
making ail matter concerning lotteries unmailable matter. ïhe su- 
prême court of the United States bas stated, in two différent opin- 
ions, that the intention of congress, in passing the statuts in question, 
was to prohibit the sending of matter concerning lotteries thrûugh 
the mails, because of the immoral tendencies of lotteries, it being 
contrary to public policy to carry, as mail matter, anything concern- 
ing them, inasmuch as they tended to demoralize the public mind. 
Stone V. Mississippi, 101 U. S. 821 ; Ex parte Jackson, 96 U. S. 736. 
By the same décisions the constitutionality of this statute is sus- 
tained. 

I understood the learned counsel for the défense to state, in hia 
opening addressed to you, that he conceded it was useless to deny that 
the défendant was engaged in the lottery business, but he insisted 
that the défendant had not used the mails, and challenged the govern- 
ment to prove that the défendant had used the mails for the purpose 
of carrying on the business. This narrows the issues in this case 
down to the simple question, does the proof in this case satisfy you 
that the défendant deposited, or caused to be deposited, in the mails 
the matter concerning lotteries charged in this indiotment ? 

The charges in the indictment, which the government has at- 
tempted to prove, specify three distinct offenses : The first is that 
the défendant mailed at the post-office in Chicago a letter directed to 
Jim G. Holmes, Virden, Illinois, containing certain circulars and lot- 
tery tickets; the second is that the défendant mailed at the Chicago 
post-of&ce a letter containing certain circulars and lottery tickets 
directed to E. W. Williams, box 302, CoUinsville, Illinois; and the 
third offense charged is the mailing of a letter at the Chicago post- 
office containing similar inclosures directed to Sam Moorey, at 
Shiloh, Illinois. It is admitted by the witnesses for the government 
that the names of Holmes, Williams, and Moorey are fictitious names, 
and that the letters which it is charged the défendant mailed, con- 
taining thèse circulars and tickets, were in answer to letters written 
by Mr. McAfee and Mr. Mooney, respectively.usingthe fictitious names 
of Holmes, Williams, and Moorey, addressed to the défendant, B. 
Frank Moore, 127 La Salle street, Chicago, inclosing money, and re- 
questing that he invest it for them, respectively, in pursuance of an 
advertisement of certain lotteries, which had been eut from a news- 
paper, and in which they also requested a reply by mail, 

It is claimed, on the part of the government, that the proof tends 
to show that thèse letters mailed in Chicago, addressed to Holmes, 
Williams, and Moorey, were mailed by the défendant in response, or 
answer, to the Holmes, Williams, and Moorey letters, written by Mc- 
Afee and Mooney. This court in several cases has had occasion to pass 
upon the question as to whether the détection of crime, bymeans of 
decoy letters, is allowable under the law, and has uniformly charged 
the jury that it is an allowable method of deteeting crime, stating in 



UNITED STATES V. MOORB. 41 

two cases, which I hâve in mind, that it is hardly possible to detect 
crimes against the postal laws in any other way. 

Allusion was made, by the counsel for défendant, to certain com- 
menta made by a learned brotlier on the bench, Judge Tbbat, of St. 
Louis, in some case in which McAfee appeared before him as a wit- 
ness. I do not know what peculiar facts appeared in that case 
which gave occasion for the commenta said to hâve been made by my 
learned brother as to the conduct of this witness, but must présume 
that it was a case which justified what he then said, but there is 
nothing in this case, in my estimation, — and I say it to you with 
due regard as to the responsibility of the court, — that discrédits the 
testimony of Mr. McAfee. His testimony stands before you like that 
of any other witness. The question for you to détermine is whether 
you will believe McAfee underoath, taking into considération the ex- 
planation which he bas given in référence to his methods of work. 
It certainly ought not to discrédit any witness before a jury to hâve 
it brought out that he, as an individual member of society, bas vol- 
untered to detect crime without appointment or without any officiai 
position. Nor ought it to discrédit a witness, perhaps, any more be- 
cause he is the agent of some organization and is employed to carry 
out its objects for the suppression of vice. If it is a part of the pur- 
pose of that organization to suppress lotteries, you must say whether 
an individual, acting towards the ends of that orginazation, as its 
agent, is to be discredited, while using methods allowable under the 
law. If the défendant received the letters, copies or which are in évi- 
dence, purporting to come from Holmes, Williams, and Moorey, he 
could hâve answered them without violating the law. Ho must be 
presumed to know what the law is in regard to sending matter con- 
cerning a lottery through the mails ; and sending such matter in re- 
sponse to a letter from a fictitious person is just as clear a violation 
of the law as if sent to a real person described by the name to which 
the letter was addressed. The name of the person to whom the in- 
hibited matter is addressed is no part of the offense, but the question 
is, did the défendant send through the mails a letter or circular con- 
jaerning lotteries ; and you hâve no eoncern with the good f aith of the 
person who incited or induced, by a decoy letter, the sending of such 
matter any more than you hâve with the good faith of a person who 
sends marked money through the mails in order to detect one who is 
stealing from the mail. When défendant received the letters in ques- 
tion he was under no obligation to so answer them as to violate the 
law. 

It is for you to détermine whether the proof on the part of the 
government shows that, in response to thèse registered letters, con- 
fessedly written by McAfee and Mooney, addressed to the défendant 
at his place of business in this city, certain letters were received 
containing thèse lottery circulars and tickets. There can be no doubt, 
on au inspection of thèse circulars and tickets, that they coucern ar 



42 FEDBBAL BBPOBTEB. 

refer to lotteries; they will speak for themselves, and you will bave 
them in the jury-room, so that you may see just what they are. 

The testimony on the part of thè government shows without dispute 
that, some time in January, 1882, the défendant gave an order in writ- 
ing to the assistant postmaster of this city, authorizing the delivery of 
his registered mail matter to a Mr. Halsey, and the testimony on the 
part of the government shows without dispute that his registered 
mail, since that time, has been delivered to Mr. Halsey, and that the 
three letters in question, postmarked at Virden, CoUinsville, and Shiluh, 
Illinois, were delivered to Halsey, and receipted for by him. The ques- 
tion of fact for you to pass on is, "Does this connect the défendant 
■with the sending of thèse oirculars and tickets?" Are you satisfied, 
beyond a reasonable doubt, that thèse letters written by McAfee and 
Mooney, from Virden, CoUinsville, and Shiloh, were registered letters, 
and were delivered in due course of mail to defendant's agent hère 
in this city, and that, in response to those letters, thèse letters con- 
taining circulars and tickets were mailed, either by the défendant 
himself, or by his direction, and sent through the mail as addressed? 
That is the question. Does the fact that thèse registered letters from 
Holmes, Williams, and Moorey, whioh came into the hands of the 
agent, Halsey, and were responded toin the manner exhibited by the 
proof, satisfy you, beyond a reasonable doubt, that défendant sent 
through the mail the lottery tickets and circulars in évidence ? If so, 
you should find the défendant guilty; but if you are not satisfied by 
the testimony of the government, beyond a reasonable doubt, that the 
défendant did send thèse circulars, then he should hâve the beneût of 
that doubt, and you should render your verdict accordingly. 

See Bâtes v. U. S. 10 Fed. Kep. 92, and note, 97. 



Unitei» Statbp V. Kanb. 
{DUtritt Oourt, D. Oregon. January 26, 1884.) 

ObSTJITJCTIIîG THE PASSAGE OP THE MaH.. ■ ' 

Tlie défendant and ôthers, dîscharged railway laborers, to the number of 150, 
,assembled at Pendletôn, Oregon, and by threats of violence preyented the 
daily train of the Oregon Railway & Navigation Company, inçluding the mail 
car *ith the United States mail therein, from proceeding to Portland, beoause 
the conductor would not permit them tô ride thereon to Portland f ree of charge, 
on the ground that they had no money and the Company having ," passed tlitrn 
up," ought to " pass them down; *' and îor the same reason and by the same 
means prevented the condactorfrom detaching said mail car from said train and 
soridihg It to Portland' withthe United States mail tberein. Held that, whether 
- the Company was pnder any leg;al obligation to carry the défendant to Portland 
free of charge oriiot, he had no n^ht „to prevent the .conductor from sending 
the mail car on' to Portland, as he did ; ànâ that the condûct of the défendant 
and his associâtes being unlawful and necessarily causing the passage of.the 
mail to be obstructed, the law imputes to him an intention, whateyer the pri- 
màry purpose of his conduct was, to cause such obstruction, and, therefore, he 
is guiltyof pbstructing and retarding'the passage of the mail, contrary to sec- 
tion 3995 of the Kevised Statutes. 



united states v. kanb. 43 

2. Passengeb on Traih. ' " 

A.pcrson who is entitled to travel on a railway car may go upon the same 
peacefully, and remain therein until he arrives at his destination; and if thjB 
conduclor undertalies to put liim ofE, on the ground that lie is not entitled to 
travel thereon, he may resist force with force ; but if the conductor stops the 
train on his account, and undertakes to detach the mail cartherefrora and send 
it on with the mail, he has no right to preveat him from so doin/î, and if he 
does his act ia unlawful. 

Information for Violation of Section 3995, Rev. St. 

James F. Watson, for the United States. 

George Kane, in propria persona. 

Deady, J. This is an information charging the défendant with a 
violation of section 3995 of the Eevised Statutes, which provides 
that "any person who sball knowingly and willfuUy obstruct or re- 
tard the passage of the mail, or any carriage, horse, driver, or carrier, 
carrying the same, shall, for every such offense, be punishable by a 
fine of not more than $100." The défendant pleads "not guilty," and 
submits the case to the judgmént of the court on the facts stated in 
the déposition of the witnesses, including his own, examined before 
the commissioner who committed him to answer the charge, and 
which, by the stipulation signed by the district attorney and the 
défendant, is to hâve the effeot herein of a spécial verdict. From this it 
appears that on January 10, 1884, there were at Pendletop, Oregon, 
about 150 discharged railway làborers, including the défendant, who 
had lately been employed by contractors in the eonstruciion of a 
railway in that vicin'ty, and wahted to corne to Portland on the 
regular train of the Oregon Railway Navigation Company, then ran- 
ning between Pendleton and Portland, and carrying, among othèr 
things, the United States mail, without paying their passage, on the 
ground that they were without money, and the company ought to 
pass them down as it had passed them up, which the conductor of 
the train refused to permit; that thè défendant, acting as spokes- 
man for himsëlf and the crowd, told the conductor that the train 
should not move without them, and that if he undertook to puU out 
and leave them behind, there would be trouble, and he would be hurt; 
that thereby the train with the United States mail in the postal car 
was detained at Pendleton until the nôxt day, January llth, when the 
conductor concluded and undertook to out off the postal car containing 
the United States mail, then being ôarried thereon from Pendleton 
to Portland, and proceed with it to the latter place, as it was his 
duty to do, but the défendant forbade him to do so, and told hirn 
there would be trouble if héattempted to uncouple the car; and when 
the conductor, notwithstanding the threat, undertook to bave the pin 
removed, and the mail car detacbed from the rest of the train for the 
purpose of proceeding with it to Portland, the défendant, backéd by 
several of his associâtes, prevérited the brakeman from taking out 
the pin, by putting his foot upon it, and thrèateiiing violence if thé 
attempt was pèrsisted in; but also, according tô his own statément, 



éà FEDERAL BEPOBTEB. 

saying that the conductor might take "his mail, but if the train goea 
we are going with it," whereby the passage of said mail, mail carnage, 
and carrier, was further obstrueted and retarded uiitil the arrivai on 
the ground of a detachment of United States soldiers, and the arrest 
of the défendant by the deputy United States marshal. 

In the case of U. S. v. Kirby, 7 Wall. 482, the défendant was 
charged with arresting the carrier of the mail, and detaining the 
steam-boat on which it was being carried for that purpose. The de- 
fendant, in his plea to the indietment, alleged that he made such ar- 
rest as sheriff, upon a lawful warrant charging the carrier with mur- 
der, and without any intent or purpose to obstruct the mail or the 
passage of the steamer. Upon a demurrer to this plea, the judges 
in the court below were divided in opinion as to whether the conduct 
of the défendant constituted, under the circumstances, an obstruction 
of the mail within the meaning of the act of congrese, and oertified 
the question to the suprême court. The court answered the question 
in the négative, saying, "that the act of congress which punishes the 
retarding or obstruction of the mail or of its carrier, does not apply 
to a case of a temporary détention of the mail caused by the arrest 
of the caïrier upon an indietment for murder." In the course of his 
opinion, Mr. Justice Pield says, substantially, that the statute only 
applies to persons who do some act with a knowledge that it will re- 
tard the passage of the mail and do it with that intention, but adds : 
"When the acts which create the obstruction are in themselves un- 
lawful, the intention to obstruct will be imputed to their author, al- 
though the attainment of other ends may bave been his primary ob- 
jeet." 

That the conduct of the défendant and his associâtes had the ef- 
f ect to obstruct and retard the passage of the mail is self-evident ; and 
that this efifect was knowingly caused by them, although it was not 
the primary object of their action, is also plain enough. They di- 
rectly and purposely obatructed the passage ôf the mail, not as an 
end, it is true, but as a means of coercing the conductor to carry thera 
on hjs train to Portland. I suppose the passage of the mail is sel- 
dom obstrueted, except by robbers, otherwise than as a means of at- 
taining some other end. In ail such cases the question to be decided 
is whether the act causing the obstruction is in itself lawful ? If it 
is, the obstruction neoessarily caused thereby is not a crime. It can 
hardly be pretended, upon the facts stated, that thèse men who 
stopped this train had any légal right to travel thereon without pay- 
ment of their fare or the consent of the conductor. No oontract, un- 
derstanding, or usage is alleged or shown, under or by virtue of which 
they could claim such a privilège with a shadow of right. Because, 
as they allège, the Company "passed them up," theyclaimed it ojight 
to "pass them down." There is an old adage that "one goodturû de- 
serves another, " but this application of it would make the doing of 
good Works dangérous tothe doer. How long would it be before they 



TJNIT£I> STATBS V. EANE. 45 

would stop an ascending train on the ground that they oaght to be 
"passed np again" because they had been "passed down." The act 
of detaining the train, ineluding the mail car, was unlawful, and 
therefore the Intention to retard the passage of the mail by sueh act 
is imputed to the défendant and bis associâtes. In other words, the 
law holds them responsible for the necessary conséquences of theii 
unlawful conduct, without référence to the motive or purpose which 
actually induced it. But aven supposing that they had, at the time, 
a légal right to transportation on this train free of charge, or had 
even paid for their passage to Portland thereon, the act was unlaw- 
ful. 

Under such circumstances it may be admitted that the défendant 
would hâve a right peacefully to board the passenger car and to re- 
main there until he reached bis destination. If the conduotor dis- 
puted his right and sought to put him off, he might lawfuUy resist 
force with force ; and if the conductor chose to detain the train at 
any point until he got off, and tho passage of the mail was thereby 
retarded, the responsibility therefor would lie at the door of the Com- 
pany, and not the défendant. But in my judgment, the défendant, 
even under those circumstances, would not be justified in preventihg 
the conductor from detaching the mail car from the train and seud- 
ing it on to its place of destination; and this is what the défendant 
and his associâtes did on January llth. The railway oompany, it 
should be remembered, was under an obligation to carry the mail 
without delay as well as the défendant. And however derelict it may 
hâve been in the performance of the latter obligation, the défendant 
was not thereby authorized to prevent the company from doing what 
it conld to keep its contract to carry the mail for the purpoSe of 
thereby coercing a performance of its supposed obligation to him. 
In the case of a mail-carrier, or a person on board a mail carriage, 
charged with the commission of a crime, it may be absolutely neces- 
sary to temporarily obstruct the passage of the mail to secure the 
arrest of such carrier or person. But the arrest of thèse persons, 
under the circumstances, is a lawful act, and the temporary incon- 
venience caused thereby is submitted to rather than that persons 
guilty of serions crimes should escape punishment. One public con- 
venience yields soœething to another. But it is not only unlawful, 
but riotous, to prevent, as the défendant and his associâtes did, tbe 
passage of a locomotive drawing a mail car with the United States 
mail therein for the mère purpose of constraining the person éh&xgpà 
with the conduct thereof to do or refrain from doing some act collat- 
éral thereto, and which he may even be under a légal obligation to 
do or omit. If the railway company was under any légal obligation 
to carry thèse men to Portland, and rtsfused or failed to do so, the 
law gave them the same remedy ior this breach of contract tliat it 
does other people. But it did not give them any right to ooerce the 
company by prevènting it from carrying the mails aceording to^on- 



46 fEBSBAIi BSPOBTEB. 

tract nntil it ehould acquiesce in their demand, to the grèat hin- 
drance, inconvenience, vexation, and possible loss ot the public. The 
transmission of the mail from place to place throughout the civilized 
world with certainty and celerity is one of the greatest and most 
useful labors of modem society. And it cannot be admitted for a 
moment that a great overland link in this endless chain of communi- 
cation and intelligence oan be broken for days to ailow a mob of dis- 
charged railway iaborera to coerce a railway company into giving 
them a free ride of 200 or more miles. 

In contemplation of law, upon the facts stated, the défendant is 
guilty as oharged in the information. The maximum punishment 
for this offense is only $100 fine. Why so serious a matter as this 
may be, is so limited in punishment, as compared with other crimes 
of no greater moral turpitude or inconvenience to the public, it is im- 
possible to say. But taking this measure of punishment for my 
guide, and considering that the défendant has practically declined to 
maks any contest in the premises, he is sentenced to pay a fine of 
$25 and to atand oommitted to the jail of this county until the sam» 
is paid ox be is by law discharged therefrom. 



Thb Pbgasus.' 
{Oireuti Court, D. Connectent. Januaty 7, 18840 

OouJBiON— Whkn Loss BBSDiiTiiia fbou, Snouii) bb DrvTOED. 

Even gross f ault committed by one of two vessela approacWng each other 
from opposite directions does not excuse the other from observing every proper 
précaution to prevent a collision ; and when, if such précaution had been ob- 
served, the collision would bave been avoided, the loss should be divided. 
See The MaHa Martin, 12 Wall. 31. 

The foUowihg are the findings of fact on this appeal : 

(1) About half past 10 o'clock in the evening of July 21, 1882, the steam- 
tug Whipple, baving in tow the barge AUandale, both owned by the libelant, 
lashed to her starboard aide, left Jersey City, bound for pier 8, East river. 
The tug and tow had ail their régulation lights properly set and brightly 
burnlng. The night was dark, but the lights were easily visible for a dis- 
tance of over a mile, but her green and red lights were obscured to the view 
of any vesael bearing on the starboard of the tug, by the barge. The tide was^ 
rtinning flood. (2) As the tug and tow passed abreast of pier 1, North river, 
abotit 100 yards off in the river, their ôfBcera saw the colored lights of the Pe- 
gasus, aniron ateam-boat then ofC Castle William, about a mile distant. At that 
time the Whipple was on a course about south, and the Pegasus was on a course 
about north, or meeting respectivelyhead and head. Thereuporithe tug and 
théPègasus both commenced to swing tothe eastWard in the East river, upoa 
courses convergihg towards each other, the tug to reach pier 8, and the siteamer,, 

.«■MS.aUS'JtD.Rl» t3U 



THE PBGASUB. 47 

as was her uniform custom when there was a flood tide, to make a sheer on a 
north-east course to f acilitate her landing on the south side of her pier. (3) At 
this time the Whipple lost the green light of the Pegasus and saw only her 
port light, but blew two whistles to inform the Pegasus that she wanted to 
go on her starboard side, and, without getting any reply, continued under a 
starboard wheel without giving any further signal. The Pegasus continued 
on her north-easterly sheer until she was about a fourth of a mile from her 
landing place, when she starboarded her helm and swung to the westward, 
as she usually did, in order to make her customary landing. She did not see 
the tug or barge until too late to avoid a collision. (4) ïhe collision occurred 
at a point about 300 yards south-west of the upper bath-house on the battery. 
The barge was seriously injured by the hîovf of the Pegasus. (5) The Pe- 
gasus was going at the speed of about 12 miles an hour until she starboarded 
her helm, when she slowed down to four ci flve miles an hour. The speed 
of the tug was about three miles an hour ail the time. (6) The Pegasus did 
not hear the signal of the tug, nor did she see the lights of the tug at any 
time until the collision. (7) The captain of the tug knew the course the 
Pegasus was accustomed to take in order to make her landing, but assumed 
that as he had signaled her that he was going on her starboard side, she 
would conform her movements accordingly. 

As conclusions of law, I find : 

(1) That both vessels were in fault, — the tug for going to starboard and 
keeping on that course when she lost the green light of the Pegasus, with- 
out any signal from the Pegasus assenting to that course; and the Pegasus 
for failing to see the lights of the tug and not adopting necessary precaa- 
tions accordingly. (2) That the damages should be divided between tbe 
parties. 

Beehe, Wilcox'é Hobbs,ioT\ihQ[&ïït. 

MacFarlane é AdamSyiov ol&im&nt, 

Wallaoe, J. The proof s in. this case fuUy sustain tha conclusioni 
of the court below, as expressed in the opinion of thediatriot judge, 
except as to his finding that there was no fault or négligence on the 
part of those in charge of the Pegasus in not seeing the tug and 
barge until too late to avoid a collision. The learned district judge 
states in his opnion that he cannot find why the two vertical white 
lights on the flag-staff of the tug and barge were not visible to the 
steamer, although they were burning brightly. The reason why the 
the red and green lights on the tug were not seen, is obviously, as he 
finds, because they were hidden by the barge from the time the tug 
swung under her starboard wheel for the East river, thus bringing 
the barge between her and the Pegasus. The two vertical white 
lights were suspended on the flag-staff of the tug, one about a foot 
above the other, and the lower light was 21 feet above the water. 
It is possible that thèse lights may hâve been somewhat obscured 
from the Pegasus by the pilot-house of the barge at times while the 
vessels were approaching each other, but in the constanstly shifting 
positions of the vessels theycould not hâve been hidden eontinually; 
and those in charge of the Pegasus do not rely upon any such thpory, 
but insist that there were no lights on the tug, and that none were to 
■be seen when the vessels coUided. Thèse lights ought to hâve been 



48 FEDEBAL BEPOBTEB. 

seen during the time the Pegasus was on her north-east course, 
which covered three quarters of a mile ; and in the absence of any f aot 
to explain why they were not seen, there can be no other rational 
conclusion except that it was owing to some relaxation of vigilance 
on the part of the Pegasus. Precisely where this négligence should 
be located is not important ; it suffices that there was f ailure to see 
them when they were plainly visible to those in charge of the steamer, 
if they had used due -diligence. 

Agreeing with the district judge that the tug was in fault, and that 
the conduct of her captain waâ grossly négligent in keeping under his 
starboard wheel when the green light of the Pegasus had been closed 
upon him for so long a distance, and in attempting to keep his course 
when his signais had not been answered, and when he had reason to 
know that the Pegasus was making for her usual landing, neverthe- 
less the collision was not attributable solely to the tug. As the district 
judge states in his opinion : "It is manifest that if the Pegasus had 
seen or ought to hâve seen the lights of the tug and barge, her man- 
agement was négligent, and she was in fault." In suoh a case the 
damages must be apportioned between the offending vessels. Even 
gross fault committed by one of two vessels approaching each other 
from opposite directions does not excuse the other from observing 
évery proper précaution to prevent a collision; and when, if such 
précaution had been observed the collision would hâve been avoided, 
the loss should be divided. The Maria Martin, 12 Wall. 31. 

A decree is accordingly ordered dividing the loss, %ith a référence 
to a master to ascertain the amount. No costs are allowed to either 
party as against the other in the court below, but costs of the appeal 
are awarded to the libelant. 



POOLS V, SHATOHEBDEFT. 49 

Prelinghuysbn V. Balbwin. 

iŒreuit Court, S. D. New Totk. January 7, 1884.) 

Reatoval of Cause— Kbv. St. § 639, sdbd. 3 — Citizknship at Insïitutiok of 
SniT. 

Wliere a case is removed under Rev. 8t. { 639, subd. 3, the requUite diversity 
of citizenship must exist both when the suit is begun and when the pétition 
for removal is filed. 

Motion to Eemand. 

Martin é Smith, for plaintiflf. 

Abbett é Fuller, for défendant. 

Wallace, J. Since the décision in Miller v. Chicago, B. d Q. R. 
Co. 17 Fed. Eep. 97, the suprême court, in Gibson v. Bruce, 2 Sup. 
et. Eep. 873, has construed the language of sections 2 and 3 of the 
removal act of 1875 to require as a condition of removal that the 
requisite diversity of citizenship exist both when the suit was begun 
and when the pétition for removal is filed. That décision seems to 
control the présent case, where the removal was procured by the plain- 
tiff under subdivision 3 of section 639 of the Eevised Statutes, the 
parties both being résidents of New Jersey when the suit was brought, 
but the défendant having removed subsequently to New York. The 
language of this subdivision is substantially similar to that of section 
2 of the removal act of 1876, so far as it relates to the question now 
under considération, and the reasons st$ited in the opinion of the 
court in Gibson v. Bruce apply with equal force to a removal under 
subdivision 3 of section 639. 

The motion to remand is granted. 



PooLE and others v. Thatohbbdeft, Défendant, and another, Gar- 

uishee. 

{Circuit Court, D. Minnesota. December 13, 1883.' 

1. Rbmoval of Causes— g ABNI8HMENT uitder thb Statutb of Minnesota. 

Proceedings in garnishment, instituted under the Minnesota statute, are te 
be considered as auxiliary to the main action, when considered with référence 
to the right of removal to the fédéral court. 

2. Case Btatbd. 

The main action against the défendant had proceeded to judgment in the 
state court ; garnishee proceedings had been instituted in the same court, and 
in the same action, to enforce the judgment ; during the pendency of this pro- 
ceeding the plaintiff had the cause removed to the fédéral court. On motion 
to remand the cause to the state court, hdd, that the removal having been made 
after judgment had been readered in the main action, was too late, and the 
cause must be remanded. 
v.l9jno.2 — i 



50 . FBDSBÀli fiBBOBÏEB. 

Motion to Eemand Cause. 

MoCeaey, J. This is before the court as a motion to remand. The 
plaintiff Horace Poole brought his action in the state court against 
Thatcherdeft, the défendant. In the case in the state court a process 
of garnishment was issued and served upon the garnishee, Mr. Eolph. 
A regular action was prosecuted to final judgment against Thatcher- 
deft. Eolph anawered, denying any liability on the part of the gar- 
nishee under a provision of the statutes of Minnesota which are in 
chapter 66, Eev. St. 1878. The plaintiff obtained from the state 
court leave to file what is called a supplemental complaint, making 
the garnishee a party, and seeking to recover against him upon the 
ground that the original défendant, Thatcherdeft, had fraudulently 
conveyed to him a stock of goods. After the filing of this supple- 
mental pétition, the plaintiff in the case applied to the state court for 
the removal of the case to this court. It is perfectly clear that the 
original action against the défendant Thatcherdeft cannot be removed, 
because in the case final judgment had been rendered some time be- 
fore application was made to the state court for the removal. But 
the proceedings under the supplemental pétition can be removed only 
when the case is such that it would constitute a new original inde- 
pendent suit, and did not constitute a mère appendage to the origi- 
nal suit. If it was an original proceeding in itself, and not a mère 
auxiliary.proceeding, it could be removed, otherwise it cannot. Ques- 
tions very similar to this hâve trequently been before the court, and 
I think it has been uniformly held that ail proceedings in the nature 
of garnishee proceedings for the purpose of merely enforcing a judg- 
ment of the state court are auxiliary in their character, and not original 
and independent proceedings. A bill in equity may be flled to set 
aside a fraudulent conveyance for the purpose of coUecting an amount 
due by a judgment in the state court, and that cause of action may 
be transferred to the circuit court of the United States ; but when the 
action is brought for the purpose of enforcing a judgment in the 
state court, whatever the form of proceedings may be, it is auxiliary 
in its character and cannot be removed, and wô think that the rul- 
ings which hâve been announoed in previous cases in other districts, 
applying the proceedings nowbefore us under the statutes of Minne- 
sota, and that it is in substance and in effect a garnishee proceeding 
andit cannot be maintained as an independent suit, but only as a part 
of the original suit against the original défendant. If the original 
judgment cannot be brought hère we can bave no jurisdiction in the 
supplemental proceeding. One reason is that if a judgment were rei 
moved and the money coUected upon that supplemental proceeding, 
the.court would be called upon to direct the application for the pay- 
ment of the original judgment; it might be that upon this proceed- 
ing the judgment might be for more than the original judgment, if 
it was a separate proceeding conducted withouti any référence to the 
original case at ail. At ail events, it is brought, we think, for the pur- 



WEIiLMAM V. HOWLAND GOAIi ft IBOK WOBES. 61 

pose of enforcing the payment of a judgment in the state court, and 
as that judgment is not before us we cannot take jurisdiction of the- 
supplemental proceeding. 

Thèse views, we think, are supported by the following cases : Pratt 
V. Albright, 9 Ped. Ebp. 634; Weeks v. Billings, 66 N. H. 371; 
Ckapman v. Bargar, 4 Dill. 567; Bank v. Turnbull, 16 Wall. 190 ; 
Barrow v. Ilunton, 99 U. S. 80 ; Buford v. Strother, 10 Ped. Eep. 406. 

The statutes under considération in those cases were not always 
exactly the same as the statute of this state, but we think they were 
in substance the same. We think the authoidties are conclusive as 
to the question hère. 

The motion to remand is sustained. 



Wisa^LMAN and others v. Howland Coal & Ibon Wobeb. 
{Circuit Court, D. Eentueky. January 2, 1884.) 

1. ir'aTlTION FOB REMOVAL — JURISDICTrON. 

After the flling of a pétition for the removal of a cause to a fédéral court, 
and the tender of a valid bond, if the pétition and record show eood grouud 
for removal, the jurisdiction of the state court is superseded, and an amend- 
ment of the pleadings subsequently allowed in the state court is invalida 

2. Bamb— Sefabatb Controvekst— Necksbakt Pabtœs— Defunot Cohpoha- 

TION. 

A corporation which has sold ail its property and frannhises, except the mère 
right to exist, and which has no offlcers or place of business, is not a necessary 
party in a suit against a stockholder to maiie him liable for his unpaid sub- 
Bcription, notwithstanding the fact that the corporation has still the power to 
reorganize and coUect the stockholders' dues. 

In Equity. 

W. W. Thum and George Du Relie, for complainants. 

Otto A. Wehle, for défendant. 

Baeb, J. The motion of complainant to remand tothe state court 
must be determined by the relation which the Howland Coal & Iron 
Works bears to this litigation. The suit is to make défendant Small 
liable for his unpaid subscription to that company's stock to the es- 
tent, at least, of complainant's debt. The allégation of complainant 
in his original pétition is that "the Howland Coal & Iron Works is 
now, and has been for several years, insolvent, its entire property and 
franchises having been sold out several years ago, and said corporation 
has long since ceased to do business, and has no oflScers or agents or 
ofiSce in this state, and has had none for three years or more last 
past." After the filing of the pétition for removal in the state court 
and the tender of the bond, the complainant, by leave of state court, 
amended his pétition, and alleged "that the défendant, the Howland 
Coal & Iron Works, is a résident of this state, and has a corps of or- 



52 FEDERAL BEFOBTEB. 

ganic offieers maintaining and keeping up the corporate existence of 
the said défendant, but that none of the offieers or agents of said de- 
fendant réside in this state, and résidences of eaoh and ail its oiEcera 
and agents are" unknown to those plaintiffs. The plaintifEs désire to 
furtlier amend their said pétition, and say that by the charge that 
said défendant had ceased to do business they meant to say, and now 
so charge the fact to be, that said défendant Howland Goal & Iron 
Works bas ceased to do business in the way of operating its raines, 
and transporting and selling the coal taken therefrom in the markets, 
■which mining and selling coal was the chief business of said corpora- 
tion." 

This amendaient should not hâve been allowed to be filed by the state 
court, as it came too late. The pétition for removal had then been 
filed and the bond tendered, and thereby the state court had -ceased 
to bave jurisdiction over the cause, if the pétition, with the record as 
it then existed, made a good ground for removal. Railroad Co. v. 
Mississippi, 102 U. S. 141. The allégations of the pleadings and 
the exhibits then and now in the record show that ail of the visible 
property of this corporation had been sold, also its franchises, except 
the right to exist as a corporation. The corporation still had a légal 
existence, but not an actual one. It had no organization, no offieers, 
or agents, but the stockholders still hâve the right to reorganize and 
elect offieers. If this were done the corporation conld sue and be 
sued, and it could coUeet the unpaid stock subscription and apply it 
to the payment of the debts of the company. 

The complainant did not bring this suit against the corporation, 
but against Small, the stockholder. In its présent condition no per- 
sonal judgment could be rendered against the company, and it is 
exceedingly doubtful whether the company will be bound by the judg- 
ment should one be rendered against Small. It is true that complain- 
ant, after he had sued Small, who was a non-resident, and seized his 
property by process of attachment, attempted to bring the corpora- 
tion before the court by a constructive summons; but if the corpora- 
tion bas no organization, offieers, or agents anywhere, how can this 
corporation be even constructively summoned? While, therefore, 
this corporation is not defunct, it has no living, active existence, al- 
though in law it may survive sufficiently to hâve the power of reor- 
ganization for some purposes. Its présent status makes the reasons 
which apply to a defunct corporation apply to this one. The How- 
land Coal & Iron Works is only a nominal party, if a party at aU. 

The motion to remand to the state court is overruled. 



MASON V, HAai'FOfiO, P. & F. fi. co. 53 

Mabon and others, Adm'rs, ». Haetfoed, P. & P. E. Co. and others. 
(Circuit Court, D. MassachuKttg. January 18, 1884.) 

1. JujiiSDiCTioN OF Circuit Coukts — Whbn Goncubhknt with District Court. 

By section 4979 of the Kevised Btatutes of the United Btaies the several cir- 
cuit courts hâve concurrent jurisdiction with the district courts "of ail suits at 
law or in equity, brought by an assignée in bankruptcy against any person 
claiming an adverse interest, or by any such person against an assignée touch- 
ing any property or rights of the bankrupt transférable to or vested in such 
assignée." By this section jurisdiction is conferred upon the circuit courts to 
ascertain and adjust ail lien and other spécifie claims upon the property vested 
in the assignée clairaed by any person adversely to the assignée representing 
the gênerai creditors, without regard to the citizenship of the parties. Nor is 
such jurisdiction alïected by the change of interest created by a conyeyance 
made under the decree of the district court. Having once acquired jurisdition 
of the subject-matter and the parties, the court will retain it for ail purposes 
■within the scope of the equities to be enforced. 

2. Epfect Givbn to Testimony of Pautibs on Former Trial. 

3. BlLIi of REVIVOR— STATUTE of LikiTATlONS — XjACHES. 

Ordiharily a bill of revivor may be filed at any time before it is barred by the 
statute of limitations, which, when the suit i^ abated by thedeath of the plain- 
tiiî, begins to run from his decease, or, according to some authorities, from the 
time administration is taken out. Where one acquises title with fuU notice 
and subject to an incumberance of a lien, he cannot charge lâches on the part 
of the person bringing suit to enforce the lie^a if the suit is brought within the 
time prescribed by the statute. 

In Equity. . . 

S. E. Baldwin, for défendants, 

A. Payne, T. E. Oraves^ and \V. S. B. Hopkins, for complainants. 

Nelson, J. This is a bill of revivôr and supplément filed by the 
administrators of Earl P. Maaon, to revive a suit abated by his de- 
cease, and to bring in as défendants parties who hâve succeeded to 
the interest of some of the original défendants. The facts and pro- 
ceedings in the suit, so far as it is uecessary to state them, are as 
follows: 

The original bill was flled in this court by Earl P. Mason in Deeember, 
1871, against the Hartford, Providence & TishklU Kailroad Company, whose 
road and franchises liad been previously conveyed to and formed part of the 
railroad of the Boston, Hartford & Erie Railroad Company, the assignées in 
bankruptcy of the Boston, Hartford & Erie Railroad Company, adjudicated 
bankrupt by the district court of this district in March, 1871, the trustées 
under mortgages of the Hartford, Providence <fe Fishkill Éailroad made prier 
to the cpnsolidalipn, the trustées of the Berdell mortgage of the Boston, 
Hartford & Brie Eailroad, made subséquent to thç consolidation, and the 
treasurer of the state of Connecticut. The objeçt .of the bill was to enforce 
against that part of the Boston, Hartford & Erie Railroad in the states of 
Rhode iBland and Connecticut, which was formerly the Hartford, Providence 
& Fishkill Eailroad, a lien claimed by the plaintifE to exist on account of 
certain preferred stock issued by the Hartford, Providence & Fishkill Rail- 
road Company in 1854, before the consolidation, the certiflcates of which 
stock cpntained a clause that the pair value thereof was "demàndable by the 
holder of the same from the company, at any time after April 1, 1865," and 
a demandof payment made upon the company in March, 1871. To that bill 
answers were filed in 1873, and replications were flled October 15, 1875i 



6é FBDEBAIi SEPOBTBB. 

On July 27, 1875, the trustées under the Berdell mortgage conveyed the 
whole railroad to the New York & New England Eailroad Company. 

On July 21, 1875, the district court, upon the application of the assignées, 
made an order authorizing and directing them to sell and convey their inter- 
est as assignées in the Boston, Hartford & Erie Railroad to the New York & 
New England Railroad Company, and in the order directed, at the request 
of Mason, that the deed of conveyance should contain a proviso and condition 
that "nothing in the same should be construed to afCect the rights of any 
person or corporation, if any, holding stock, whether common or preferred, 
in the Hartford, Providence & Fishkill Railroad Company." In purauance 
of this order, the assignées on July 28, 1875, conveyed their interest in the 
road to the New York & New England Eailroad Company by a deed which 
contained the proviso and condition above mentioned, and also contained a 
stipulation by the grantee that it would assume the défense of this and of 
other suits then pending against the assignées, and would protect them 
therefrom. 

On September 21, 1876, before any further proceedings were had in the 
suit, Earl P. Mason died intestate, and July 25, 1881, the présent plaintifCs 
took ont administration upon his estate in this district. The présent bill 
was filed March 23, 1882, against the original surviving défendants, the New 
York & New England Railroad Company and Aldrich, Cooley & Gardener, 
who hâve been appointed trustées under the mortgages of the Hartford, Prov- 
idence & Fishkill road, in place of three deceased défendants in the original 
bilL 

In December, 1875, Earl P. Mason joined with the Boston & Providence Eail- 
road Company and others, as owners of stock in the Hartford, Providence & 
Fishkill Railroad Company, in filing a bill in equity in the suprême court of 
Rhode Island, against the New York & New England Railroad Company and 
others, to set aside, as unauthorized and void, the conveyance of the Hart- 
ford, Providence & Fishkill road to the Boston, Hartford & Erie Railroad 
Company. That suit terminated March 12, 1881, by the entry of a final de- 
cree dismissing the bill. 

The bill of revivor states the proceedings subséquent to the death of Earl 
P. Mason, and prays that the original suit may be revived for the beneflt of 
his administrators. To this bill the New York & New England Railroad 
Company filed a demurrer to part, and plea tothe residue, and three other de- 
fendants filed a plea to the whole bill. The case was heard upon the pleas 
and demurrer, and upon certain agreed facts which were made part of the 
case by stipulation o£ the parties. 

1. By tbe demurrer of the New York & New England Eailroad Com- 
pany, objection is taken to the jurisdiction of the court for want of 
the requisite citizenship of the parties. Objection to the jurisdiction 
of the court, when the defect appears of record, may be taken at any 
stage of the proceedings ; and the record in this case shows that in the 
original suit, and alsQ in the bill of revivor, citizens of Ehode Island 
appear both as plaintiS and défendant. But we are of opinion that 
in this case jurisdiction does not dépend upon the citizenship of the 
parties. By section 4979 of the Eevised Statutes the several circuit 
courts bave concurrent jurisdiction with the district courts "of ail 
suits at law or in equity brought by an assignée in bankruptcy against 
any person claiming an adverse interest, or by any such pepson against 
an assignée, touçhing aqy property or rights of the bankrupt trans- 
férable to or vested in, such assignée," By this section jurisdiction 



MASON V. HAKTFOBD, P. & F. B. CO. 55 

is eonferred upon the circuit courts to ascertain and adjust ail liens 
and other spécifie claims upon the property vested in the assignée, 
claimed by any person adversely to the assignée as representing the 
gênerai creditors, without regard to the citizenship of the parties. 
This has been settled by repeated décisions of the suprême court. 
Smith V. Mason, 14 Wall. 419; Marshall v. Knox, 16 Wall. 551; 
Lathrop v. Drake, 91 U. S. 516; Eyster v. Gaff, Id. 521; Burbank v, 
Bigelow, 92 U. S. 179; Duiley v. Easton, 104 U. S. 103. This case 
cornes within the very ietter of the statute. The plaintiff sets up, and 
seeks to enforce against a part of the railroad which was transferred 
to the assignées, by virtue of their assignaient, a lien alleged to bave 
been created, under the laws of Rhode Island and Connecticut, by the 
issue of preferred stock. That this court has jurisdiction to détermine 
its validity, and if found valid to enforce it against the property, is 
.-îlear. Nor is the jurisdiction affected by the change of interest cre- 
ated by the conveyance made under the order of the district court. 
Having once acquired jurisdiction ot the subject-matter and the par- 
ties, the court will retain it for ail purposes •within the seope of the 
equities to be enforced. Ober y. Gallagher, 93 U. S. 199; Word v. 
Todd, 103 U. S. 327. The conveyance to the New York & New Eng- 
land Railroad Company vras made expressly subject to any lien which 
can be enforced against the road in this suit, and the case must 
therefore proceed as if no Buçh conveyance had been made, 

2. At the hearing of the Rhode Island suit, the présent plaintiffs, 
the Rhode Island administrators of Earl P. Mason, were called as 
•witnesses, and when asked whether in their capacity as administra- 
tors they were the possessors of any stock of the Hartford, Provi- 
dence & Fishkill Railroad Company, answered that they had found 
among.'the effects of the deceased 281 phares of the îCOimmon. stock 
and 13à shares of the preferred stock. The défendants ihsist that 
by thus testifying they elected to treat the preferred shares as stock, 
and hâve thereby waived the right to treat it as an indebtodness in 
this suit. We do not thinkisuch a resuit can faifly be claimed from 
their testimony. Upon an inspection of the bill in that case, it is 
apparent that the plaintiffs in it sought relief as holdôîPs of the com- 
mon stock,. and not of the preferred stock., Their ownership of the 
common stock was the maièrial ppirjt in issue, and so much pf théir 
answer as declared their ownership of the praferïed stock was imma- 
terial and uniînportant. It would Be unjust and ineq^tiitaible to hold 
that their testimony amounted to an élection to waiveull rights ac- 
quired by their intestate by his demand of payméntof the par. value 
of the shares. That was plainly not their meaning, ân'd'ùQ su(ïh éf- 
fect should be now given to their testimony'. 

3. The next défense is lâches. Ordinarily a bill of revivor may be 
filed at any time before it is barred by thè statute of limitations, 
which, when the suit is abated by the death of the plaihtitf, begins 
t ) run from his decease, or, according to some authorities, from the time 



£6 FEOEBAL BEPOBTEIt. 

administration is taken ont. Story, Eq. PI. § 831; 66th Equity Eule. 
In this case the bill of revivor was filed within six years after the death 
of the original plaintif?, and within eight months after administration 
was taken out. But the New York & New Englaud Kailroad Com- 
pany charges that before the filing of the bill of revivor it had ex- 
pended over $4,000,000 in obtaining possession of the road, iu pay- 
ing off liens, and in improving and completing it. But it acquired 
its title with full notice and subject to the incumbrance of the lieu 
claimed in this suit. By its deed of conveyance it assumed the dé- 
fense of the suit, and became from that time the real défendant. It 
can tlierefore stand in no better position than its grantors, the orig- 
inal défendants. During the pendenoy of the Ebode Island case this 
suit was allowed to lie dormant, with the acquiescence of both par- 
ties, since the success of the plaintiffs in that suit would hâve ren- 
dered this case of no importance. The expenditures of the New York ■ 
& New England Company were not induced by the eonduct of thèse 
plaintiffs or their intestate. They were made at its own risk, and 
ought not to preclude the plaintiffs from enforcing their lien. 

The merits of the original bill are not open at this stage of the 
suit, and hâve not been considered. Frctz y. Stover, 22 Wall. 198. 

Other points were urged at the hearing by the learned counsel for 
the défendants, but none of them appear to be of sufficient importance 
to require comment, and they are overruled. 

Flea and demurrers overruled. 



Scott and others ». Baltimobb, C. & E. Steam-Boat Co, 

OdeIiIi and others v. Sahk. 

PuBOELL and others v, Same. 

{Oireuit Court, D. Maryland. January IS, 1884.) 

CaRBIEI?— LiABILITT FOR GJoODS DesTROTED BY FiBB ON Wharf. 

Q-oods were delivered to the défendant, a steam-boat company, for transpor- 
tation. The bills of lading.did not designate any particulsr vessel. The goods 
were burned on the wharf by a flre not occurring through any neglect of the 
défendant. HM that, even though the goods were negligently delayed by the 
défendant, the delay was not the proximate cause of the loss. 

Bailroad Co, v. Éeew», 10 Wall. 190. 
Samb— Bill OF Làdino. 

The bills of lading stlpulated, "dangers of the seas, flre, breakage, leakage, 
accidents from machinery and boilers, excepted, and with liberty to tow and 
assist yessels in ail situations. " HM, that this was an exemption from Uabitity 
from loss by flre while the goods were on the wharf awaiting transportation,aa 
well as when on board the vesseL 

At Law. 



SCOTT V. BÂLTIHOBB, 0. <& S. SXEAU-BOAT 00. 57 

Bernard Carter, for plaintiffs. 

t/ote H. Thomas, for défendant. 

MoRKis, J. Thèse are three suits instituted to recover from the 
défendant steam-boat company for goods which thp plaintiflf delivered 
on the company's wharf at Baltimore, on December 21, 1877, to be 
transported by it, and which were burned on the wharf by a fire dur- 
ing that night. It is admitted that the fire was ndt occasioned by 
any want of care on tjhe part of the company, and that af ter the fire 
broke out ail possible effort was made to extinguish it and save the 
goods, By agreement the cases hâve been tried before the court 
without a jury. The steam-boat company had, at the time the goods 
were received by it, a daily line of steamers from Baltimore to West 
Point on the York river, and thèse goods were to be transported by 
that line, and thence by railroad to Eichmond and other more south- 
ern points. The steamers sailed daily at 4 p. m., and it was known 
that goods received after 3 p. m. were not usually sent by that day's 
steamer. In fact, goods were received by the company daring ail 
the business hours of the day, and bills of ladinggiven; none of them, 
however, specifying that the goods were to be forwarded by any par- 
ticular vessel; and whenever goods were received during the day, 
which for any reason could not go by that day's boat, they were sent 
forward the next day. 

Evidence bas been submitted by the plaintiffs tending to prove 
that the goods were delivered at the company's wharf before 3 o'clock, 
and in time to hâve gone by that day's boat; but the évidence was 
not entirely convincing, and in the face of the positive testimony of 
the agent of the steam-boat company, that at 3 o'clock of that day 
there were no goods for the south remaining on the wharf, I am not 
prepared to find as a fact that the goods were delivered in time for 
that day's boat. I do not, however, consider the finding of this fact 
of any importance, for, as I understand the law, even if the company 
could hâve forwarded the goods by that day's boat and negligently 
omitted to do so, it would not affect its liability in thèse suits. The 
law is settled that in cases of this kind, unless the delay in forward- 
ing the goods is so unreasonable in its nature as to be équivalent to 
a déviation, or unless the loss of the goods is the direct and proxi- 
mate resuit of the delay, the carrier is not liable unless he would 
be answerable under his liability as carrier without référence to the 
delay. And where goods in the custody of a carrier are destroyed by 
storms, floods, or fire, in a place in which they would not hâve been 
but for the négligent delay of the carrier, the courts hold that the 
direct and proximate cause of the injury is the flood or the fire, and 
that the delay in transportation is only the remote cause. The su- 
prême court of the United States so decided in Railroad Co. v. Eeeves, 
10 Wall. 190, and it was so held by the suprême court of Massachu- 
setts in Hoadley v. Northern Transp, Co. 115 Mass. 304. This lat- 
ter case was a suit to recover for the loss of goods by fire, which the 



58 FEBBBAL BBPOBTBB. 

carrier had delayed forwarding, and which -were bumed at the place 
where they were delivered into his custody. The bill of lading in 
that case exetnpted the carrier from liability for loss from fire while 
the goods were in transit, or while in dépôts or warehouses or places 
of transhipment. It was held that the destruction of the goods by 
fire could not reasonably hâve been anticipated as a conséquence of 
the détention; that the delay did not destroy the goods; and that 
there was no connection between the fire and the détention. 

The important question in thèse cases, therefore, is whether, by the 
language of the bills of lading, the steam-boat company bas exempted 
itself from its common-law liability for the loss of the goods by fire 
while on its wharf ; for if, by tbe bills of lading, it is exempt for the 
loss by fire, it makes no différence, in my judgment, that the com- 
pany was to blâme for the détention; and if, by the bills of lading, it 
has not exempted itself, it is liable notwithstanding it was not to 
blâme for the détention. The right of common carriers, by proper 
stipulations in a bill of lading, tolimit their common-law liability for 
losses byfire, when the fire is not attributable to their misconduct, 
or that of any persons or agencies employed by them, is well settled, 
(York Co. V. Central B. R. B Wall. 107 ;) and by the act of congress of 
March 3, 1851, (Eev. St. § 4282,) it was enacted that the owners of 
vessels, except those used in rivers or inland navigation, shall not be 
answerable for loss by fire of any goods on board, unless the fire is 
caused by their design or neglect. If, therefore, the language of the 
bill of lading is sufficiently explicit to exempt the company from loss 
by fire, there can be no doubt as to the lawfulness of such an exemp- 
tion. The language contained in the bill of lading given for the goods 
of the plaintifs J. W. Scott & Co, and Odell, Ragan & Co. is: "Dan- 
gers of the seas, Jire, leakage, breakage, accidents from machinery 
and boilers, excepted, and with liberty to tow and assist vessels in ail 
situations." The language of the bill of lading for the goods of the 
plaintiffs Purcell, Ladd & Co. is: "And itis expressly contracted and 
agreed that loss or damage by weather, Jire, leakage, breakage, and 
dangers of the seas are excepted." 

It is contended on behalf of the plaintiffs that under the strict 
rules of construction applicable to stipulations by which the carrier 
seeks to limit his common-law liability the word "fire" in thèse bills 
of lading, and more particularly in the one first mentioned, being 
elassed with dangers of the seas and other risks of navigation, it is to 
be taken as applicable only to fire after the goods are laden on board. 
After careful considération I find myself unable to assent to this con- 
struction. The liability of the carrier as carrier begins from the 
moment of the receiving the goods, (Hutch. Carr, § 89,) and although 
preparatory to the transportation they are detained by him on his 
wharf or in his storehouse his responsibility then is in no respect 
différent from his responsibility after the actual transportation bas 
commenced. It is difficult, therefore, to see why, if he stipulâtes gen- 



JONKS V. VBSTfiT OF TRINITY PARISH, 59 

erally for exemption from losses from fire, he skould not be under- 
stood to mean exemption whiie the goods are in his possession pre- 
paratory to their being laden, as well as afterwarda. In most in- 
stances there must be some interval of.time between the réception of 
the goods and their being actually laden on board the vehicle of 
transportation, and as the law sanctions contracts by whieh the 
carrier exempts himself from the risks of fire, it seems to me it would 
be a very strained and forced construction of thèse contracts now 
before me to hold that the exemptions in them from "fire, leakage, 
and breakage" do not apply to losses from those risks while on the 
■wharf, because they are mentioned ia the same sentences \Yith other 
risks whieh are only encountered on the voyage itself. 

I hâve not failed to oonsider the argument urged on behalf of the 
plaintiffs, based on the inconvenience and hardship occasioned by 
such an exemption as now upheld, arising from the fact that after the 
goods are delivered to the carrier the usual fire insurance whieh 
covers the goods while in the warehouse of the shipper is at an end, 
and that the ordinary marine policy does not attach until the goods 
are laden on board, and that as the shipper does not know whether 
the carrier has detained the goods on the wharf or has put them on 
board, he is at loss how to protect himself. This is, however, but 
one of the hardships resulting from the exemptions whieh carriers 
hâve been allowed to contract for. The lawfulness of such an ex- 
emption as that claimed in thèse présent cases is too firmly settled 
by authoritative cases to be now doubted, and the difficulty is not to 
be cured by the court's refusing to give to the words of the contract 
their fair and reasonable meaning. 

Verdict for défendant. 



Jones ». Vestbt of Tbinitt Pabish. 

{Circuit Court, W. D. North CaroUna. November Term, 1883.* 

MoNTHiiT Salart— Presumption as to Pkriod of Emplotitent. 

There is a presumption of law that a person employed at a monthly salary is 
engagea by the moath, so that either party may terminate the contract at the 
end of any month, unless it afflrmatively appears that a deflnite period of em- 
ployment was contemplattfd by the parties to the contract. 

Faïsb RKPRœSENTATioîfs— Rescission op Contbact— Kecovbbt op Damages. 
A person who secures employment for a stated period by false and fraudu- 
lent représentations may be dismissed at any time, and his employer may re- 
cover from him for any damage sustained by reason of the deceit. 

Contract op Service — Incompetknoy — Rescission. 

A person who, representing himself as compétent to discharge any duty, is 
employed for that purpose, may be dismissed upon his incomoetencv beinff 
showu. 



60 FEDERAL KEPOBTEE. 

4. Samb— Breach — ÎCbolbct to Dischabob— "Waivek. 

One who, after a material breach of contract oa the part of a person em- 
ployed hy him, continues to accept his services without reasonable cause for 
delay in discharging liim la presumed to hâve waived the breach, and will not 
be allowed to set it up afierwardg. 

5. Samb — Breach of Oonfidencb. 

A person in whom pecullar confidence is reposed may be discharged by his 
employer for misleading him with respect t.o the matter of confidence, eveu 
thoiigh the truth might hâve been ascertained by inquiry elsewhere. 

6. 8amb — Wrongful Dischabgb — DAMAass. 

A person wrongfully discharged can recover tlie contract price for the full 
timeof service agreed upon, without showing constant readiness to perform the 
worlc from which he has been dismissed. 

7. Bame — Spécial Contkaot— Quantum Mkruit. 

One empioyed by spécial oouiract cannot recover on a quantum mtruit for hia 
services. 

At Law. 

J. H. Merrimon, for plaintiff. 

McLoud, Davidson é Jones, for défendants. 

DicK, J., (charging jury.) If the terms of the contract declared 
upon were in writing, or were admitted, or undiaputed in the plead- 
ings, it would be the duty of the court to construe them, and déclare 
the rights and liabilities arising therefrom. As the contract was 
verbal, and the parties dispute about the terms of the agreement, it 
is your duty to ascertain those terms from the évidence, and apply 
the principles of law announced by the court to the facts proved. 
For the purpose of assisting you in performing sueh daty I T7ill first 
refer briefly to some circumstances surrounding the parties at the time 
the contract was made, and to certain facts established by the plead- 
ings or by uncontroverted évidence. A jury in ascertaining the terms 
of a contract, and a court in construing their meaning, clearly hâve 
the right to consider the language empioyed, and also the subject- 
matter and the surrounding circumstances, so as to ascertain as 
nearly as possible the intention of the parties. The vestry of Trinity 
parish desired to build a new édifice, which would afford more suita- 
ble accommodation for the members of the church and other citizens. 
For this purpose the vestry had collected about $2,500 in cash, and 
had obtained about $1,000 in reliable subscriptions. With this cash 
fund and subsoription list, and confidently relying upon the liberality 
of the members of the parish and other citizens of the community, 
the vestry determined to commence the érection of the church édifice. 
They applied to Prof. Babcock, of Ithaca, New York, an experienced, 
skillful, and accomplished architect, to furnish appropriate plans and 
spécifications for the building, suitable to the convenience aud wishes 
of the congrégation, and within the limits of the means accumulated, 
and sueh as could be reasonably expected to be realized from future 
donations. Under thèse circumstances, the plans and spécifications 
were prepared and forwarded by the architect, who also reeom- 
mended Mr. Eichardson, of Ithaca, New York, as an experienced 
and skillful contractor and builder. After some correspondence, Mr. 



JONES V. VESTSY OF TBINITÏ PABISH. 61 

Eichardson came to Asherville, and being made acquaînted with the 
views and wishes of the vestry and other surroundings, he offered to 
furnish material, and to construct the nave and transept of the édifice 
according to the plans and specificatione, for the sum of $3,500. 
CJpon further considération, he offered to build the chancel and 
tower for an additional thousand dollars. Thèse offers were not ac- 
cepted at the time. In a few months afterwards the vestry deter- 
mined to aocept the offers; but Mr. Richardson declined, as he was 
then engaged in other work, and the price of labor had greatly 
advanced. The vestry then concluded to commence the work under 
the superintendence of a building committee. Mr. King, of Ealeigh, 
an experienced and skillf ul builder, was employed to hâve immédiate 
charge of the work, and he made some préparation for the under- 
taki'ng, but he soon became sick and died. About this time the 
plaintiff came to Asherville, and had several conférences with the 
building committee and with other members of the vestry, and en- 
gaged with them to superintend the érection of the church édifice 
according to the plans and spécifications furnished by the architect. 
In the course of bis employment he was to procure skilled workmen, 
and direct them in their labor; he was to make contracts for the de- 
livery of suitable materials for building; he was to pay wages and 
for materials with the funds placed in bis hands by the vestry, and 
keep and render proper weekly accounts of such transactions, and for 
his services he was to receive $125 per month. 

There is no évidence directly showing that any spécifie time for the 
continuance of such employment was expressly agreed upon, and 
there is now a différence in the understanding of the parties upon 
this question. As a gênerai rule, in an employment at monthly wages, 
without any definite time as to the continuance of service, either party 
may terminate the contract at the end of a carrent month. This 
rule will not apply when it appears from the language and other 
terms of the contracts, the nature of the services, and the sur- 
rounding circumstances, that the parties evidently intended that the 
employment should continue until the accomplishment of a definite 
object. In this case the object of the parties to the contract was the 
érection of a building according to certain plans and spécifications. 
The plaintiff represented himself as having a long and large expéri- 
ence in such business, and had thus fully qualified himself for the 
employment, and the défendants were desirous of procuring the serv- 
ices of a prompt, faithful, and skillfnl superintendent, who would, as 
speedily as possible, erect the édifice designed by the architect. 
You can consider the évidence as to ail the facts and circumstances 
whieh attended and induced the making of the contract, in forming 
your conclusion as to the mutual intent of the parties as to the time 
of service which was to be rendered by the plaintiff. If you should 
find that the parties contemplated the continuance of the employ- 
ment of the plaintiff for the entire time necessary for the completion. 



62 JTEDBBAL BKFOBTBB. 

of the édifice, and that such was their mutoal understanding of the 
agreement, theu you will proceed to inquire whether the défendants 
had sufficient légal excuse for his discharge before the work was un- 
ished. It is conceded that the plaintiff was prompt and diligent in 
business, and rendered correct accounts for money expended for ma- 
terials and labor. 

It is insisted by the défendants that, before the contract was en- 
tered into with the plaintiff, he made représentations as to the prob- 
able cost of the building, which were reasonably relied on, and were 
a material indueement to his employaient; and that those repré- 
sentations were false and fraudulent, and caused much injury and 
losB. You hâve heard the évidence upon this subjeot, and if you find 
that the allégation is sustained, then I instruot you that such a fraud 
was sufficient légal excuse for his dismissal from service. 

It is further insisted on the part of the. défendants that the plain- 
tiff was not compétent in scientifio and mechanical knowledge and 
skill to oonstruct the building in accordance with the plans and spéci- 
fications furnished by the architect. Upon this question of compe- 
tency you hâve heard the dépositions and testimony .of several wit- 
nesses on both sides, who are acquainted with the plaintiff and hâve 
some knowledge of his qualifications as a builder. The évidence is 
conflicting, and if you find, from a prépondérance of évidence, that 
the allégation is sustained, then I instruct you that the défendants 
were justified in discharging the plaintiff from their employment. 

It is further insisted by the défendants that the plaintiff made a 
material, injurions, and expensive departure from the plans and 
spécifications without their knowledge and consent. To this charge 
the plaintiff replies that there was no material and injurions depart- 
ure, as alleged; and even if he did not strictly foUow the plans and 
spécifications, the défendants were informed of such departure, and 
by continuing his employment this alleged breach of contract was 
waived, and, after such condonation, was not sufficient cause for his 
discharge. If a person is continued in employment after a material 
breach of contract is fuUy known to the employer, a waiver and 
condonation is presumed by the law, and such breach cannot subse- 
quently be relied upon as sufficient cause for the discharge of the 
employé. This presumption of law may be rebutted by évidence 
showing that there was in fact no waiver, and the jury may con- 
sider ail the facts and circumstances in évidence, and détermine 
whether there was reasonable cause for delay in discharging the em- 
ployé. 

It is further insisted by the plaintiff that some of the défendants 
very often saw the work as it progressed, and they could easily hâve 
obtained information from skilled workmen who were engaged in 
or saw the work, in regard to any departure from the plans and 
spécifications, and yet his employment was continued for several 
months after the alleged departure. The principlea embraced in the 



JOSES V. TB8XBÏ OF TBINITT PABISH. 68 

légal maxim referred to by the counsel of plaîntiff hâve no applica- 
tion to this case. As a gênerai rule "the laws assist tiiose who are 
vigilant, not ttiose who sleep over their rights." This maxim is 
usually applied to persons seeking remédies in the courts, and it is the 
foundation of statutes of limitation, but it bas a more éxtensive sig- 
nification. In ordinary business transactions a person must avail 
himself of his own knowledge and ail means of information within 
reach and easily accessible. If the truth or falsehood of a repré- 
sentation ean be ascertained by ordinary vigilance and attention, it 
is a man's own fault if he neglects to inform himself by inquiry and 
investigation, and the law will not afford him relief from injury 
caused by sueh neglect. This rule does not apply to a case where a 
gross fraud bas been perpetrated, or where a person bas a right to 
rely upon the statements of another in whom peeuliar confidence has 
been reposed. The défendants were unskilled in the work which 
they had undertaken, and they employed the plaintifF, upon his repré- 
sentations that he had the requisite knowledge and skîll, to construct 
the édifice according to the plans and spécifications. They reposed 
spécial trust and confidence in him, and they had the right to rely 
implioitly upon his statements in relation to his employment; and 
it was his duty to'fuUy answer their inqniries and make them ac- 
quainted with his proceedings, and give them the benefit of ail the 
information whieh he possessed, or by reasonable exertion eould hâve 
possessed upon the subject; and there was no légal obligation re- 
quiring them to seek other sources of information. If the plaintifi 
misled the défendants upon thèse matters, or failed to give them 
correct and fuU information upon their inquiries, then they were justi- 
fied in discharging'him from their employment. 

It is further insisted by the plaintiff that at the time he ehtered 
into the contract he reserved the right of exercising his own judg- 
ment and discrétion in ^erforming the work, when there was any dis- 
crepaney between the plans and the spécifications, or when there 
was any uncertainty about the matter. This réservation did not 
authorize him to make any material departure from the plans and 
spécifications against the will or without the consent of the de- 
fendants after they had been fully advised as to the propbsed 
changes. You hâve heard the évidence and arguments of counsel 
upon the questions of fact in relation to a spécial contract for the 
en tire time that would hâve been required for the érection of the 
building, and as to the causes for discharging the plaintiff from 
employment; and, guided by the principles of law whioh I hâve 
announced, I hope you will be able to corne to a correct conclusion 
on this part of the case. If you find that there was a spécial 
contract for the employment of the plaintiff until the work entered 
upon was finished, and that the performance of his part of this 
entire contract was prevented by his discharge from service without 
légal excuse, then he is entitled to recover by way of damages $125 



64 FEDERAL REPORTEE. 

per month for stich tîme as the évidence shows would hâve been re- 
quired to oonstruct the édifice. Under such circumstances as would 
induce this finding it is not necessary for the plaintiff to aver and 
show that he made useless efforts to hâve himself reinstated in em- 
ployment, and was able and ready to perform the work from which 
he had been improperly discharged. In this place I will not refer to 
the question whether the défendants hâve a right to recoupment or 
diminution of damages for defects in the work, and for loss and in- 
jury sustained by unnecessary expansés incurred by the action of the 
plaintiff as nnder the system of code pleading adopted in this state, 
and observed and used in this court, the défendants intheir answer seek 
to recover such damages by way of counter-claim. I will instruct 
you as to their rights in such proceeding when I corne to consider 
their answer. If you should find that there was no spécial contract 
as alleged, or that the plaintiff was properly discharged, then he 
cannot recover upon the first cause of action stated in his complaint. 

In the second cause of action the plaintiff déclares upon a qyumtum, 
meruity and avers that he is entitled to recover the value of the work 
and labor performed by him, as the défendants received and used 
the benefits of his services. The défendants were obliged to receive 
and use the work which had been done under the superintendence of 
the plaintiff, as it was on the church lot, and they had paid for the 
materials, and for the work executed by the actual builders; and the 
structure could not be abandoned or removed without great incon- 
venience, loss, and expense. I am of the opinion that the plaintiff 
cannot recover upon this count founded upon an implied contract. 
The law will not imply a contract when there is an express one, 
uniess such express contract has been rescinded, abandoned, or varied 
by the consent of the parties. In this case the évidence on both 
sides establishes a spécial contract, certain and definite in ail its 
terms, except as to the duration of the enJployment, in which the 
value of the services of the plaintiff is âxed by mutual agreement, 
and the plaintiff cannot, upon an implied contract, obtain any other 
measure of damages. 

It is unnecessary to further consider this count, as the plaintiff, in 
his third cause of action, claims his stipulated wages for seven months 
of actual employment. The spécial contract, as admitted by both 
parties, expressly provides that the plaintiff shall receive the sum of 
$125 per month, and is only indefinite as to the tinie of service. In 
consideying the first cause of action in the complaint, I stated to you 
that upon a contract for wages payable monthly there is a légal 
presumption that the employment was by the month, and either 
party may rightfuUy terminate the engagement at the end of such 
period. I directed you to consider the évidence as to the language 
of the parties, the nature of the service, and surrounding circum- 
stances, to ascertain whether this légal presumption was rebutted 
by it appearing that the mutual understanding and agreement of the 



JONES V. VESTEY OS TBINITÏ PABISH. 65 

parties was that the employaient should continue until the édifice was 
completed. If you find that there was such an entire oontract, then 
upon this third cause of action I instruct you that the plaintiff is en- 
titled to recover his stipulated wages for seven months, and his neg- 
lect to eall for monthly payments in no way impaired this right. 
The services were performed for that period, and they were of value 
to the défendants, and of benefit in the subséquent construction of 
the édifice. 

I will now proceed to consider the légal right of the défendants to 
recover damages under their counter-claim, which is in the nature of 
a cross-action. They aver that before they employed the plaintiff he 
was fully advised of the amount of funds which they had on hand 
and could reasonably anticipate for the purpose of erecting the build- 
ing ; and also of the offers which had been made by Mr. Eichardson 
to undertake the construction, and plaintiff told them that he could 
probaly save them $500 on such offers. That this représentation 
was reasonably relied on, and constituted a material inducement to 
the contract of employment, and it was false and fraudulent, and ail 
the funds on hand were expended by plaintiff before ail the founda- 
tion walls of the édifice had reached the water-table, and before a 
large part of the dressed stones, mentioned in the spécifications, had 
been finished. When représentations are made by one party to a 
contract, which are material, and may be reasonably relied upon by 
the other party, and such représentations are false and fraudulent, 
and cause loss and injury, the party thus deeeived is entitled to re- 
cover damages for the loss and injury sustained. You hâve heard 
the évidence upon this subjeot, and if it supports the allégation you 
should return a verdict for the défendants, assessing the damages in 
accordance with the loss and injury sustained, as shown by the évi- 
dence. 

The défendants further insist that the plaintiff, before his employ- 
ment, assured them that he was fully compétent in knowledge, ex- 
périence, and practical skill to construct the building according to 
the plans and spécifications of the architect; and that, without 
their consent or approval, he willf ully or ignorantly made material 
departures from such plans and spécifications, which made the foun- 
dation walls insecure, and caused a much larger expenditure in 
construction than was contemplated by the architect ; that the plans 
and spécifications required that the walls should be bound together 
by bond-stones placed at certain distances from each other, and 
passing entirely through the wall, and that the walls should be built 
with uncoursed rubble-stones laid in horizontal Unes and vertical 
joints; that the plaintiff used no such bond-stones, and the outside 
of the wall was built of ashlar stones of uniform thickness, eut, and 
dressed smoothly in bed and joints, and laid in continuons courses ; 
and that the walls were rendered less secure, and the cost of material 
v.l9,no.2— 5 



66 FKSEBilL BEPOBTXB. 

and labor was far more expensîve, than contemplated in the specifi 
cations. You bave heard the statements and explanations of the 
plaintifE. Several intelligent and experienced builders and artisans 
hâve, in their testimony, explained the terms of art used in the plans 
and spécifications, and, af ter a caref ul examination of the work, they 
hâve given you their opinion upon the matters in controversy. Al- 
though taere is some confliot in the testimony, I hope you may be 
able to understand the subjeet, and correctly décide the questions of 
fact involved. If you find that the plaintiff departed from the plans 
and spécifications without the consent or approval of the défendants, 
and such departure rendered the f oundation walls insecure, and eaused 
greater expense in the work than was contemplated by the arehitect, 
then the défendants are entitled to such damages as the évidence 
shows that they sustained by reason of détective work and increased 
expenditures. 

The pleadings and trial in this case hâve been conducted in ac- 
cordance with the mode of procédure provided in the Code System of 
thia state, and there are substantially cross-actions between the par- 
ties. If you find that one party alone is entitled to recover, you 
will so render your verdict; but if you should think that the plaintiff 
has sustained the allégations of his complaint, and the défendants 
hâve proved their counter-claim, then you will asseas the amount 
to whieh each party may be entitled, and deduct the less sum from 
the greater, and render your verdict for the party in whose favor the 
balance may appear. 



Missouri Eivee, F. S. & G. E. Co. v. United States. 

(Circuit Court, W. D, Missouri, W, D. January, 1884.) 

1. InCOMR TaX — CORPOKATIONB — PBKIOD FROM AUGUST 1, 1870, TO JANUAKY 1, 

1871. 

The case otBlake v. JUat. Bank, 23 Wall. 307, 320, followed, which held that 
corporations were not exonerated from the payment of income tax during the 
last flve montha of the year 1870. 

2. Action to Recoter Taxbs — Déduction of Overpaid Amounts. 

In a suit by the United States for the recovery of taxes, the défendant is en- 
titled to a déduction of any amount admitted by the plaintifE to hâve been pre- 
viously overpaid, even though there is no plea of offset 

Error to the District Court. 

The United States brought suit in the court below to recover of the 
Missouri River, Port Scott & Gulf Eailroad Company the sum of 
$19,474.93, claimed as due for taxes, under the revenue laws, as 
income tax upon the earnings of said company for the year 1870. 
The case was heard by the court without a jury, upon an agreed 



MISSODBI KIVER, F. S. & G. B. CO. ». UNITED 8TATKB. 67 

statement of facts, from which it appears that the gross reeeipts of 
Baid Company for the 12 months ending December 31, 1870, were — 

$1,199,220 58 
That the expenses for the same period were - 707,222 18 

Leaving net earnings, ■ - - $491,998 40 

It also appeared that said company had overpaid the taxes due 
on gross reeeipts for that year the sum of $209.50, but that it had 
paid no tax for that year upon the undivided net earnings during 
said year. The court f ound for the plaintifif for the whole amount 
claimed, and rendered judgment aceordingly. The said railroad cona- 
pany, défendant below, brings the case hère and assigna errors, as 
stated in the opinion. 

Wallace Pratt, for plaintilï in error. 

Wm. Warner, U. S. Atty., for défendant în error. 

MoCkary, J. The errors assigned are (1) that the district court 
erred in finding the sum of $5,124.98 due from the railroad com- 
pany to the United States for taxes on net earnings from August 1 
to December 31, 1870; (2) that the district court erred in not de- 
ducting from the amount it found due the sum of $209.50, over- 
payment by the railroad company upon the taxes upon its gross re- 
eeipts for the year 1870. 

As to the firstassignment, it présents a question which was settledby 
the suprême court in Blake v. Nat. Banks, 23 Wall. 307, 320. In that 
case, as hère, it was insisted that, by oversight or otherwise, congress 
omitted to impose an income tax upon corporations from August 1, 
1870, till January 1, 1871; that therewas a hiatus of five months, so 
far as corporations were concerned, while as to individuals the tax 
was imposed for the entire year. This contention is expressly over- 
ruled by the case cited, and requires no discussion hère. 

As to the second error assigned, I think it ought to be sustained. 
The government agreed upon a statement of facts which became the 
only évidence in the case. That statement shows upon its face an 
overpayment to the government by the company upon one item of 
$209.60. True, the government does not expressly agrée to crédit 
this sum upon the remaining claim against the company, but it does, in 
effect, agrée that the court shall détermine from the facts stated what 
sum, if any, is due. It is not a question as tothe force and effect of 
a certified statement of account under the act of congress on the sub- 
jeet. The question is, what judgment is the United States entitled to 
upon the facts admitted ? And the answer must be that the United 
States is entitled to the amount of tax due, less whatever sum bas 
been paid. Nor is it necessary that the company should plead an 
offset. The government is bound to prove the amount due, and if in 
making proof it shows affirmatively that it haa received into its treas- 
ury a partial payment, the court will take that fact into aecount. 



68 FBDEBAL BBPOBTEB. 

The judgment îs reversed, and remanded to the district court with 
direction to render Judgment'for the United States for the sum here- 
tofore found due, less the sum of $209.50 overpaid, as above stated, 
and interest thereon. 



Sensbndeefee V. Paoifio Mut. Life Ins. Co. 

{Circuit Court, W. D. Missouri, E. D. November Term, 1882.) 

Life Insurancb— Policy Takbn Out for the Benefit of a Orbditor — Pboop 

OF Dî-ATH — NaTCTRE OF EVIDENCE. 

Absence of a person alone does net raise a presumption of his death ; but 
such absence, in connection with surrounding clrcurastances, such as the 
failure by his fatnily and friends to learn of his whereabouts, his character, and 
business relations, togelher with the fact that lie was last known to be seen 
near the place where a murder is supposed to hâve been committed, and the 
réputation in his family and with his frienda that he is dead, créâtes a very 
strong presumption of death, the law being satisfled with less than certainty, 
yet requiring a prépondérance of proof. On the other liand, évidence to over- 
come the piesumption of death, that the party supposed to be dead was in a 
flnancial condition which might hâve inducedhim to abscond, or that he was 
a speculator, or visionary, in his business or trades, is ail proper évidence to be 
considered by the jury in establishing the fact. 

At Law. 

S. P. Sparks and L. G. Krauthoff, for plaintiff. 

William McNeall Clough, for défendant. 

Kebkeij, J., {charging jury.) The plaintiff, William Sensenderfer, 
sues the Pacific Mutual Insurance Company on a policy of Insurance 
issued by the Alliance Mutual Life Insurance Society to said Sensen- 
derfer on the life of John La Force. It is claimed by plaintiff, Sensen- 
derfer, that the Pacific Mutual Life Insurance Company is liable to 
him, because it bas assumed to become responsible for the company 
which issued tbe policy, under a contract between the Alliance Mu- 
tual and the Pacific Mutual, read in évidence, and you are instructed 
that if the policy issued by the Alliance Mutual, and the contract be- 
tween it and the Pacific Mutual, are found to be true and genuine, 
the Pacific Mutual is liable for the policies of the Alliance Mutual 
under the conditions and limitations hereinafter stated. La Force 
had a right to insure his life for the benefit of a créditer; and if you 
are satisfied from the testimony that La Force was indebted to the 
plaintiff, Sensenderfer, at the time the policy was issued, Sensen- 
derfer bas a right to recover thereon under the conditions hereinafter 
stated. The plaintiff, Sensenderfer, under the provisions of the pol- 
icy, was bound to make satisfactory proof of the death of La Force, 
the insured, and it is this which constitutes the real issue in the case, 
the défendant company claiming that the proof of death is not satis- 
factory. This proof — the proof of the death of La Force — the plaintiff, 



SENSENDEBFEB V. PACIFIO UDT. LIFE INS. 00. 69 

Bensenderfer, is bound to make, and he cannot recover on the policy 
Bued on unless he satisfies you by a prépondérance of évidence that 
La Force is dead, and that he died prior to the first day of December, 
1877. The poliey sued on requires the annual premium to be paid in 
advance, — and the proof shows that the said premiums bave been paid 
up to the first of December, 1877, — so that if La Force died after that 
day, the policy had by its ternis been forfeited, and no recovery could 
be had tberein. If La Force is still living, or if the plaintiff, Sensen- 
derfer, bas not satisfied you by a prépondérance of évidence that he 
is dead, and that he died prior to the first of December, 1877, the 
plaintiff cannot recover, and your verdict should be for the défendant. 
As already stated, the plaintiff, Seusenderfer, has to prove to your 
satisfaction that La Force is dead, and that he died prior to the first 
day of December, 1877. By proof to your satisfaction is meant that 
when you corne to weigh and balance the évidence, as to the proba- 
bility of La Force having been alive.or dead before the first day of 
December, 1877, your mind shall arrive at the conclusion of his 
death; the lawis satisfied with less than a certainty, yet requires a 
prépondérance of proof establisbing the fact of his death. 

There are two théories regarding the life or death of La Force sug- 
gested by the testimony and in argument : The first, the theory of 
plaintiff, is that La Force is dead, as shown by reason of his con- 
tinued absence; the failure to learn of his whereabouts ; the attrac- 
tion of his family and his not returning to it; his business relations ; 
La Force's character and standing; and his being at or near the place 
where a murder is supposed to hâve been committed about the time 
of his (La Force's) disappearance. Each of thèse suggestions should 
be carefully examined byyou, under the évidence and the allusions to 
them by me, and are intended to guide you in their considération. 
Absence alone cannot establish the death of La Force, for the law pré- 
sumes that an individual shown to bave been alive and in health, at 
the time of his disappearance, continues to live, foUowing in that 
particular the presumptions aeted on in the daily affairs of life. 
While the death of La Force is not to be presumed from absence 
alone, it is yet a circumstance which should be taken into considéra- 
tion, with other évidence in the case, and the conclusion of life or 
death arrived at from the whole facts and circumstances, including 
his continued absence. The length of absence is an important élé- 
ment in estimating the weight of this évidence, which increases or 
diminishes in importance when received in connection with the efforts 
made to ascertain his whereabouts or death. 

There is évidence before you as to the family and social relation 
of La Force, which is not to be overlooked. There is also testi- 
mony as to La Force being in a neighborhood when a murder is sup- 
posed to bave been committed. The testimony bearing thereon, and 
the disappearance of La Force about the same time, is to be care- 
fully considered by you so far as it bears upon the question of La 



70 FEDEBAL EEPOBTER. 

Force being the murdered man, if a murder oceurred. If, îrom the 
testimony in the case, you shall corne to the conclusion that La Force 
was exposed to any extraordinary danger, it should hâve due weight 
in arriving at the îact of his death. The réputation in the family, of 
tlie death of one of its members, is proper évidence for you to con- 
sider, but not the opinion of any one. You bave thus an outline of 
the évidence which the plaintiff olaims establishes the fact of the 
death of La Force, — that is, that the probabilities of his death are 
greater than that he is living. If you shall corne to this conclusion, 
your verdict should be for the plaintiff. 

To weaken or destroy any presumption tending toestablish the 
death of La Force, the défendant bas introduced testimony and pré- 
sents arguments, such as that La Force's financial condition may 
hâve induced him to abscond. This is proper testimony for you to 
consider. In this particular the disposition of La Force as a specu- 
lator on a larger or smaller scale, whether visionary or otherwise, in 
his trades, his being embarrassed, or in good financial circumstances, 
come in for considération, and should receive such at your hands. 
Whatever bearing the testimony or the circumstances of the case pré- 
sent, calculated to weaken or destroy the probabilities of the death of 
La Force, introduced by the défendant, should be carefuUy consid- 
ered byyou in connection with the testimony introduced by the plain- 
tiff in support of the conclusion of his death. If, in thus weighing 
the testimony and circumstances of the case for and against the prob- 
abilities of La Force's death, you shall come to fhe conclusion of the 
death of La Force, prior to the first of December, 1877, you should 
find the issues for the plaintiff; otherwise for the défendant. In case 
you find the issues for the plaintiff, you will allow him the amount 
stipulated in the policy, together with interest at 6 per cent, from the 
date of beginning this suit. If you find the issues for the défendant, 
you will 80 state in your verdict. ' 



Kbllog and othera v. Eichabdson. 
[Circuit Court W. D. Missouri, E. D. April Term, 1883.) 
Attachmbnt — "Whmn Creditok Mat Rbsobt to— Undbb thb Missottei Stat- 

UTES — ASSIGNMBNT LAW OF MISSOURI. 

Under the Missouri statutes a creditor may obtain an attachment against the 
property of his debtor on the aflldavit that the debtor has conveycd and as- 
signed or disposed of his property and eflects, so as to hinder and delay his 
creditors, oris about to f urther fraudulently convey, assign, and dispose of the 
same with such intent. In order to maintain such an attacliment it is not nec- 
essary to prove the act of the debtor to be fraudulent in fact ; it is fraudaient 
in law if it hindera and delays creditors in the collection of their debts. 

ASSIGNMBNT UNDKB IiAW OF MiSSOURÏ. 

A debtor, under the laws of Missouri, may prefer certain creditors to ofhers, 
by mortgage or deed of trust in part or ail of his property, but he cannot make 



KBLLOQ V. BICHABDSON. 71 

such a préférence in an instrument or instruments by wliicli he disposes of the 
vihole of his property at one and the same time. Such an act would be a vii'- 
tual déclaration of insolvency and would bring the debtor under the assign- 
ment law, which requires a distribution of the property of the failing debtor 
for the beneflt of ail the creditors in proportion to their respective daims. 
Neither can a debtor in failing circumstances, and unable to pay ail his debts, 
convey his property in trust, and reserve to himself any beneflt. 

At Law. 

John A. Gillîam and C. W. Thrasher, for plaintiffs. 

Goode é Cravens, for défendant. 

Kbekbl, J., (charging jury.) Aside from the ordinary mode of 
coUecting debts by suit and summons, the laws of Missouri in cer- 
tain cases provide that a creditor may attach the property of his 
debtor, and thus secure the collection of his debt. There are 14 
différent causes mention ed in the Missouri statute, for which an at- 
tachment may issue. Under two of them, — the seventh and ninth, 
— the plaintiffs in this case hâve sued out their attachment ; they 
bave made affidavit as required in the provision of the law; men- 
tioned that they had good reasons to believe, and did believe that 
défendant, Eichardson, had fraudulently conveyed and assigned and 
disposed of his property and effects so as to hinder and delay his 
creditors; and that he is about to further fraudulently convey, assign, 
and dispose of his property and effects so as to hinder and delay his 
creditors. After the making of the affidavit and filing their bond, the 
plaintiffs were entitled to and obtained their attachment, under which 
they seized the property of the défendant, Eichardson. The law 
provides that the facts sworn to by the plaintiffs to obtain their at- 
tachment, may be denied by the défendant under oath, and when so 
denied, the plaintiffs are bound to prove the existence of the facts 
alleged by them as ground of the attachment. This is what has been 
done by Eichardson; that is, he has denied, under oath, that the 
facts set out in the affidavit of plaintiffs are true, virtually saying 
that he did not fraudulently convey, assiga, or dispose of his prop- 
erty, nor was he about doing so, for the purpose of hindering and 
delaying his creditors in the collection of their debts. It is not 
denied that Eichardson conveyed his property, but he says he did 
not do it fraudulently and for the purpose of hindering and delaying 
creditors in the collection of their debts. By hindering and delaying 
creditors in the collection of their debts is meant the doing of an illégal 
act which causes or présents an obstacle in the collection of the debt 
by a creditor. The act done by the debtor may not defraud the cred- 
itor in fact, and yet be fraudulent in law, because it hinders and 
delays creditors in the collection of their debts. Thus, for instance, 
a debtor may hâve property more than sufficient to pay ail his debts, 
yet if he puts his property out of his hands so that it cannot be 
reached by the ordinary process in law, it is hindering and delaying 
in the eyes of the law, and a légal fraud. Such hindering and de- 



72 FEDERAL BEPOSTEB. 

laying of creditors in the collection of {beir debts, the law denounces 
and treats as a fraud. 

Having thus given you the law regarding fraudulent conveyances 
for the purpose of hindering and delaying creditors, I proceed to de- 
fine the right which a failing debtor bas to deal with his property. 
Under the laws of Missouri a debtor bas a right to sélect among his 
creditors, if be cannot pay ail of them, ■whom he will pay or secure, 
in other words, whom he will prefer, but he cannot make such a préf- 
érence in an instrument or instruments by which he disposes of the 
'whole pf his property at one and the same time. Such instruments 
fall within the provisions of the asaignment law of Missouri, which 
provides that "every voluntary assignment of lands, tenement, goods, 
chattels, effects, and crédita made by a debtor to any person in trust 
for his creditors, shall be for the benefit of ail the creditors in pro 
portion to their respective claims." Under this provision of law a 
merchant may give a mortgage or a deed of trust in part or ail of hib- 
property, to secure one or moreof his creditors, thus preferring them, but 
he cannot convey the whole of his property to one or more creditors and 
stop doing business. Such turning over and virtually declaring in 
solvency brings the instrument or act by which it is done within the 
assignment law of Missouri, which requires a distribution of the prop- 
erty of the failing debtor for the benefit of ail the creditors in propor- 
tion to their respective claims. Such is the declared policy of the 
law; it places ail creditorp upon an eqvtal footing. The law furthei 
is that no debtor in failing circumstances, and unable to pay ail his 
debts, can convey his property in trust and reserve to himself any 
benefit. You are therefore instructed that if you find from the testi- 
mony that Eichardson, in the instrument in évidence called a mort- 
gage, conveyed more property than was necessary to pay the claims 
secured and provided, as the conveyance in this case does, for the de- 
livery back of the balance of property not needed to pay the preferred 
creditors, to himself, such a réservation in the deed makes it void 
as to creditors not secured thereby, and hinders and delays them 
in the collection of their debts. You will remember the évidence as 
to the amount of claims secured, about $4,500, and the value of 
the property conveyed by the mortgage, estimated at $9,000. Eich- 
ardson could not legally convey his stock of merchandise to certain 
preferred creditors, hâve them sell the property, pay themselves, and 
return the balance of the prc-ceeds or property to him. Such con- 
veyance and holding under it by the preferred creditors would amount 
in this case to a withdrawal of the property conveyed from the reach 
of creditors, and constitute a fraudulent conveyance for the purpose 
of hindering and delaying creditors, and fully justifying you in fiùd- 
ing the issue for the plaintifis, and you are instructed to do so if the 
facts are found by you as stated. 

The timo during which the sale by the preferred creditors is to be 
made is another matter to which your atl^ntion is specially directed. 



NEW HAMPSHIRE LAND CO. V. TILTON. 73 

The law- is that even though the conveyance by which the transfer is 
made be otherwise valid, yet, if by virtue of its provisions the deal- 
ing -with the property is such as necessarily delays creditors in reaoh- 
ing any remainder or surplus by creditors not secured, such a delay 
is a. hindering and delaying.of creditors, and fraudulent in law. Cred- 
itors are entitled to their pay when due. A reasonable time to dis- 
pose of the property conveyed may be taken, but it must not be with 
a view of earning profits and making gains. You are, therefore, in- 
structed that if you shall find from the testimony that the property 
conveyed by Richardson to the preferred creditors could be disposed of 
in less time than provided for in the deed of trust, and without serions 
loss, in such case it hinders or delays creditors. It is no answer to this 
to say that creditors may resort to extraordinary remédies to reach the 
property conveyed and not needed to pay preferred creditors. The 
debtor bas no right to compel creditors to resort to any of the extra- 
ordinary remédies alluded to in the argument of counsel. The con- 
veyance in this case provides that the preferred creditors may sell the 
property conveyed at retail for two months and more, then advertise 
twenty days, and sell at public auction. It also provides that the 
creditors may hire derks, pay store rents, and report monthly ail their 
doings for Eichardson. But for the fact that the conveyance does 
not set out the value of the property conveyed, the deed would be de- 
clared void as a question of law. If the property conveyed by Eich^ 
ardson to the preferred creditors was less in value than necessary to 
pay them, it might be a question as to whether such a condition as the 
one made for the sale, of the property contained in the conveyance in 
évidence would not be valid. In this case Richardson made a gênerai 
assignmeni afterwards, thereby showing that in his view at least, there 
was an overplus. On this branch of the case you are instructed that 
if you find the value of the property so conveyed by Richardson to the 
preferred creditors greater than the debts secured, and further find that 
Richardson intended that the property should be disposed of at retail, 
and that the property not needed to pay preferred creditors should 
be retumed to him, you should find the issue for the plaintiflfs.^ 



New Hampshibb Land Co. v. Tilton and others. 
(Circuit Court, D. New Hampshire. January 11, 1884.) 

1. FOBKTGS CORPOBAITON— POWEB TO HolD LanD. 

A corporation, even though it does little or no business in the state where It 
is organized, is not necessarily incapable of holding and dealing in land in an- 
other State. 

2. DbEO — ACKNOWLBDGMENT — AfTBB EXPIRATION OF AUTHOBITT. 

A defed executed by a commission empowered to convey public land may bo 
lawfullyacknowledged by the commissiouers after their authority bas been re- 
voked. 



74 fedeeaij eepobteb. 

3. Samb— How Fab Ackno-wxbdgment is Necessakt. 

An unacknowledged deed is good against ail persona having actual notice of 
its existence. 

4. Bamk — Unobbtaintt Abising aftbr Exbçution. 

A valii deed does not become void because, by reason of tlie loss of a plat 
referred to therein, it lias become difflcult to deiiae the boundaries. 
6. Deed— EsTOPPEL. 

The joint proprietors of a tract of land, who hâve accepted other land in ex- 
change therefor, are estopped to deay the validity of a deed executed by a part 
of them only, on behalf of ail, without power of attorney. 

At Law. 

W. S. Ladd, A. F. Pike, D. Barnard, C. H. Burns, J. Y, Mugridge, 
and Chase de Streeter, for plaintiffs. 

H. Bingham, G. A. Bingham, G. Marston, ï. W. Drew, E. Aldrich, A. 

5. Batchellor, and D. G. Remich, for défendants. 

LowBLL, J. This case bas occupied some weeks in the trial, and 
bas, at the end, been submitted to me, as judge and ]ury, under the 
statuts. It is a land case of much importance to the parties, and to 
others having similar actions now pending in the court. Notwith- 
standing the great mass of documentary évidence, the points in dis- 
pute are few and well defined. I will state first my findings of fact : 

The plaintiffs are a corporation organized under the gênerai iaws 
of Connecticut, Eevision of 1875, two days before the law of that 
state was modified by the act of 1880, which repealed the act of 1875. 
The défendants contend that the plaintiff corporation cannot hold 
lands in New Hampshire, excepting as incidental to any business 
which they may carry on in Connecticut; and that a foreign corpora- 
tion is not authorized to deal in lands in New Hampshire as its 
principal business, or one chief part of its business. I find that there 
was no évidence that the corporation carries on any business in Con- 
necticut. My ruling of law is given below. 

Both parties olaim under the state of New Hampshire. The plain- 
tiffs demand nine twenty-fourth undivided parts of the Sargent & 
Elkins' grant, of about 50,000 acres, made by James Willey, land 
commissioner, in October, 1831. The tract is bounded by the east- 
erlj' Une of the town of Franconia, and by the same Une extended 
northerly to the south-west corner of the town of Breton Woods, (now 
called CarroU ;) thence by the south Une of Carroll to Nash àSawyer's 
location; thence by the same to the notch of the White mountains ; 
thence southerly by Hart's location to land granted to Jasper Elkins 
and others in 1830 ; thence westerly to the first-mentioned bounds. 
The tenants elaim 36 lots of 100 acres each, to which they trace a 
clear paper title from the state, beginning in 1796, provided the deeds 
from the state were valid and effectuai. 

In 1796 the législature appointed Edwards Bucknam, John McDuffie, 
and Andrew McMillan, a committee to alter and repair the old road 
leading from Conway to the Upper Coos, and to make a new road from 
that road to Littleton, with power to sell, in lots of 100 acres each, lands 



NEW HAMPSHIBE LAND CO. V. TILTON. 7a 

of the state through which this new road should pass. Lands wère 
sold by the committee at four différent public "vendues," and tlie 
tenants claim under the fourth sale. The description of the lands in 
the deeds of the second, third, and fourth sales is by ranges and lots 
on a plan of Nathaniel Snow, made by order of the committee. I 
find tbat two range lines were adopted, not precisely parallel, so that 
when the lots were extended there was a gore of a triangular form 
which remained ungranted. Nearly ail of what is now the town of 
Bethlehem was granted by this committee. The deeds are ail alike, 
and are carefuUy and well drawn, and the objections which the plain- 
tiffs take to them apply to ail. They may be spoken of, for con- 
venienee, as one deed. The objections are that one of the committee 
acknowledged the deed after the law appointing the commission was 
repealed, and that the deed is void for uncertainty in its description 
of the land. The plan of Snow, by which ail thèse lots are described, 
cannot be found at the office of the secretary of state, if it ever was 
returned there, and cannot now be produced. Several copies of plans 
by Snow hâve been intiroduced in évidence, coming from the familles 
of persons interestod in the subject, but they differ from each other 
in some particulars, and no testimony shows clearly how, and when, 
and from what, they were severally copied. I find, however, as a 
fact that the copy called the "Cilley plan" contains internai évidence 
of having been taken from an older plan than those produced by the 
plaintifs, and that it is sufficiently proved to be considered a copy of 
the original for the purposes of this case. I find that there was an 
original Snow plan by which the sales were made, and that it was 
made from actual knovrledge of the base lines, but not from aetual 
knowledge of the lines of the lots. I further find that the base lines 
beinggiven, the lots can now be laid out upon the ground. When so 
laid out, the easterly part or corner will overlap the earlier grant to 
Nash & Sawyer; but it isnot proved to my satisfaction tbat the com- 
mittee or their surveyor knew this, but the contrary supposition is the 
more probable. 

The grant by Willey in 1831 was made to Jacob Sargent, Jr., David 
Èlkins, Enoch Flanders, Samuel Alexander, and John A. Prescott, 
and they at once sold an undivided equal interest to Joseph Eobbins, 
so that the proprietors held by undivided sixth parts. In May, 
1832, it was discovered that the road committee had conveyed away, 
or was supposed to hâve conveyed away, in 1796, ail, or nearly 
ail, of the upper portion (about one-half) of the Sargent & Elkins' 
grant of 1831; and thereupon an arrangement was made by which 
Willey granted the six proprietors another tract of about equal ex- 
tent, and allowed them $50 in money, and they made a deed of 
quitelaim, reconveying to him for the state about 23,000 acres, by 
metes and bounds, in which description is embraced the lots now in 
controversy, excepting lot 32, in range 18, and parts of lots 30 and 32, 
in range 17. This deed of reconveyance in its premièes, or granting 



76 FEDEBili EEPOKTEB. 

part, after ihe descriptien, contained thèse words : "Excepting and 
reserving ail the right and title \ve should bave had by James Willey's 
deed to us, dated October 27, 1831, of the above-described tract of 
land, provided ail or any part of [thej land mentioned in the above- 
named bounds bas not been lawfully disposed of by the authority of 
the state of New ïïampshire previous to the deed given to us as above 
mentioned." This réservation is referred to again in the habendum 
and the clause of -warranty. This deed, which purported to be made 
by ail six of the proprietors, was executed by two of them, for them- 
selves and the others. It is proved that the arrangement was made 
with ail the proprietors, and that they ail accepted and dealt with the 
land granted in exchange. The proprietors proceeded to divide the 
remaining land, and to deal with it in severalty, and no claim was made 
by or under them to this upper or regranted land for some 40 years 
or more afterwards, when the plaintiffs' predecessors in title bought 
from the heirs and devisees of some of the proprietors the nine twenty- 
fourth parts now demanded. As to the lot, and parts of two others, 
which are not incladed in the description of the reconveyance, I find 
that the plaintiffs never acquired a title thereto, beeause they had been 
divided and conveyed in severalty to third persons by the proprietors 
before the plaintiffs' predecessors purchused their undivided interest. 
I now prooeed to the points of law : 

1. I rule, for the purposes of tUis case, that the plaintiff corporation 
bas authority to hold and deal in lands in New Hampshire. 

2. I raie that the deeds from the road committee are not rendered 
invalid by the fact that one of the committee acknowledged them 
after his commission had expired. A deed in New Hampshire is good, 
without acknowledgment, against purchasers with notice, Montgom- 
cry V. Dorion, 6 N. H. 250; Wark v. Willard, 13 N. H. 389; and by 
their deed of reconveyance, the proprietors of Sargent& Elkins' grant 
acknowledged notice of ail preceding deeds. Independently of notice, 
the formai act of acknowledgment could be done after the commission 
had expired. See Lemington v. Stevens, 48 Vt. 38, and for cases 
somewhat analogous; Bishopv.Cone, 3 N. H. 513; Gibaonv.BaUey, 
9 N. H. 168; Welsh v. Joy, 13 Pick. 477; Fogg v. Wiltcutt, 1 Cush. 
300. 

3. The biirden is on the plaintiffs to prove what lands are excepted 
ont of the reconveyance ; and they hâve failed to show this. 

4. If the base Unes of the plan were known by survey when the 
plan was made, and can now be pointed out, both of which facts I 
find to be established, the deeds of the committee are not void for un- 
certainty. However difiScult it may now be, in the confusion of the 
varions copies of the plan, to ûx the exact boundaries of particular 
lots, the deed of reconveyance holds good, if the lands had heen once 
lawfully disposed of by the state. The ioss of the plan cannot make 
deeds void which once were good. It may be found to-morrow. The 
deeds hâve been assumed and acted on as good for more than 80 years; 



NEW HAMPSHIBB LaND 00. V. TILTON. T7 

and, wliether a true copy of the plan can now be proved or not, the 
plaintiffs hâve no title if thèse deeds were good when made. Immense 
tracts of wiJd land hâve been sold by ranges and lots upon a plan; 
and ail the authorities agrée that if the lots can be laid ont upon the 
ground in substantial accordance with the plan, the grants are effect- 
uai. Corbett v. Norcross, 35 N. H. 99; Browne v. Arbunkle, 1 Wash. 
C. 0. 484; Jones Y. Johnston, 18 How. 150, 154; Wells v.Iron Co. 47 
N. H. 235, 259. 

5. The plaintiffs contend, and I find it to be true, that certain lots 
of the fourth sale, if the Cilley plan be taken as a copy of the Snow 
plan, are laid out upon land which had before been granted to Nash 
& Sawyer. The argument deduced from this faot against the Cilley 
copy is legitimate, because the committee eannot be supposed to hâve 
intended to sell land which the state did not own. I bave given the 
argument due weight in this connection; but finding, as I do, by the 
prépondérance of ail the évidence, that the Cilley copy is substan- 
tially accurate after ail arguments for and against it are considered, 
it merely résulta that the committee did undertake to grant land which 
turns out to be part of Nash & Sawyer's location. This mistake ean- 
not vitiate the title to ail the rest of the town of Bethlehem; but, 
either the persons who took those lots get nothing, or ail the lots abate 
in proportion. It does not matter in this case which of thèse alter- 
natives is the true one. 

6. The deed of reconveyance is to be considered the act of ail six 
of the proprietors, though no power of attorney by which two of them 
executed the deed for the others is produced, because, by accepting 
the lands granted in exohange, they were estopped to deny thftt they 
authorized the exécution of the .deed. 

My verdict, therefore, is (1) that the plaintiff corporation bas not 
proved a title to the 36 lots in dispute ; (2) that the défendants hâve 
proved a title to the same. 

Sixty days are given the parties to file exceptions. If the plaintiffs 
except, the défendants hâve the right to except to my ruling as tothe 
authority of the plaintiffs to hold lands in New Hampsbire. 



78 FSDEBAL BEFOBTEB. 



Crœots Mining, Milling & Smblting Co. ». Colobado Land & Min- 

EBAL Go.* 

{Circuit Court, D. Colorado. January, 1884.1 

1. LocATioK OF MiNiN» Claim— End Stakbs. 

The statute of Colorado (Rev. St. 630) alîords no support to one who, in lo- 
cating his claim, fails to set the proper stakes at the end of the claim, when 
the proper position for them was not inaccessible, but merely difBcult of access, 
or approachable by a oircuitous route. In such case the title will only relate 
to the tlme when the stakes are subsequently set. 

2. Samk — Change op Lines. 

The locator of a mining daim cannot, after the location, change the Unes of 
his claim so as to take in other ground, when such change will interfère with 
the previously-accrued rights of others. 

3. Action fob Rkai/t?— Dépense. 

A défendant in an action for the possession of real estate, when he claim» 
only a part of the tract sued for, must show what part he claims. 

4. ALIBN — RlQHT TO LOOATE MlNING CLAIM. 

Upon declaring his intention to become a citizen, an alien may hâve advan- 
tage of work previously done, and of a record previously made by him in lo- 
cating a mining claiin on the public minerai lands. 
6. Same— State Coubt May Natubaiize. 

The necessary oath declaràtory of intention by an alien to become a citizen 
of the United States may be administered in the courts of record of the state. 
One who has so declared his intention to become a citizen may make a valid 
location of a mining claim. 

At Law. 

L. B. Wheat, for plaîntiff. 

W. P. Thompson and T. M. Patterson, for défendant. 

Hallett, J. This eontroversy arîses ont of conflicting locations 
of mining claims on the public mineiral lands. Ât the trial plaintifî 
had a verdict, which défendant now moves to set aside, on varions 
grounds. The errors alleged with référence to defendant's title will 
first be mentioned. 

Defendant's title: May 12, 1881, D. E. Huyck and C. M. CoUina 
located the Maximus Iode, in PoUock mining district, Summit county, 
Colorado. July 8th, in the same year, they filed a certificate of lo- 
cation. The Iode was discovered on the eastern or south-eastern 
slope of a very steep mountain, and about 160 feet below the crest of 
the mountain. The locators intended to lay the claim across the 
mountain, so that one-half or more should be on the north- western 
slope. Ât that point the mountain is almost impassable at any 
season of the year, and on the eighth of July, when the survey was 
made, it was thougbt to be whoUy so. What was done towards set- 
ting stakes at the north-western end of the claim is described by the 
Burveyor by whom the work was done, as foUows : 

"We then went back to the discovery eut and chained up the mountain 
some distance, when we came to a perpendicular précipice, or clifE of solid. 

> From tbe Colorado Law Reporter. 



OBŒSUB MININO, M. & 8. CO. V. CoLoBADO LAND & MINËfiAL CO. 79 

rock, over or around which we could not climb, owing to its precipitous na- 
ture and the fact that the crevices in the rock, and places where a foothold 
might hâve been had by one active enough to climb up the cUfiE, were fllled 
with snow and ice, and it was both impracticable and dangérous to life and 
limb to get at the points where the stakea should be set The side posta or 
stakes were set on the boundary Unes of the survey somewhat short of or 
below the middle of the claim, and the end posta were placed further on, in 
conspicuous places, as near the side boundary Unes as we could flnd places to 
put them. With my instrument I took the direction of the proper places o£ 
the upper end and side posts, and calculated the distances between the places 
where we did set them and their proper places, and marked its distance and 
direction from its proper place on each stake. The two middle side stakea 
and the two end stakes were set in such a way as to be évident and most 
likely to attract the attention of any one going up the gulch, and were within 
plain View of any one coming to the edge of the précipice above and looking 
down." 

At the time of this survey there was a practicable trail at no great 
distance south, and a wagon road some miles north, upon either of 
which it would hâve been possible to go to the other side of the moun- 
tain for the purpose of setting the north-western end stakes. And 
later in the season it was possible to pass over the mountain at the 
place where the Maximus claim was loeated, or very near that place. 
The same surveyor surveyed another location, called the Bernadotte, 
which covered a part of the Maximus territory, for the same parties, 
on the thirtieth day of August in the same year. With référence to 
the matter of getting over the mountain at that time, he testified as 
follows : 

"This survey was rnade much later in the aeason than the other, and the 
ditHculties of snow and ice which we had encountered in surveying the Max- 
imus did not then exist, and we were able to climb up to the top of the ridge 
and set the end stakes in their proper places." 

Because of the difiBculty or impossibility of getting over the moun- 
tain on the line of the Maximus claim on the eighth of July, when 
the survey was made, no stakes were set at the north-western end of 
the claim. In lieu thereof, witness stakes were placed on the south- 
«astern slopô of the mountain, as described by the surveyor in his 
testimony quoted above. The north-western end of the claim was 
not inaccessible from that side of the mountain. The stakes were 
properly set at that end of the claim in August, 1882, and it is not 
claimed that the point was then or at any time inaccessible, exeept 
as to the matter of getting over the mountain in a direct line from 
the discovery eut. Upon thèse facts a question was presented at the 
trial whether the Maximus claim was properly marked on the surface 
at the north-western end in July, 1881, or at any time before August, 
1882, when a survey for patent was made, and stakes were properly 
set. Défendant relies on a statute of the state, (Rev. St. 630,) in 
thèse words : 

"Where in marking the surface boundariés of a claim, any one or more of 
such posts shall fall by right upon precipitous ground, where the proper plac- 
ing of it is impracticable, or dangérous to life or limb, it shall be légal and 



80 FBSEBAIi BBFOfiTEB. 

valid to place any sueh post at the nearest practicable point, suitably marked 
to designate the proper place." 

But the act affords no support to the defendant's position. It re- 
lates to the matter of setting stakes where the point or place where 
they should be set is inaccessible, and not to such circumstances as 
were shown in the évidence. The locators of the Maximus claim 
could hâve reached the north-western end of the claim, at the date 
of the location, by routes which, although circuitous, were entirely 
practicable; and later in the season they could bave passed over the 
mountain at the very place where the claim is located. To hold such 
marking of boundaries to be sufficient would be to disregard the act 
of congress (section 2324) and of the state (Eev. St. 630) which 
manifestly require something more. Upon full argument and ma- 
ture considération, the ruling at the trial that the Maximus claim 
eannot hâve effect on the north-western side of the mountain before 
the date of the patent survey in August, 1882, when the stakes were 
properly set, seems to be correct. Défendant also asserts title to 
some part of the ground in dispute under another location oalled the 
Bernadette, made in the latter part of August, 1881. No question 
was made as to the manner of setting the stakes on this location, but 
there was a controversy as to the situation of the discovery eut with 
référence to the side lines of the claim, the existence of a Iode therein, 
and perhaps some other matters. During the trial but little atten- 
tion was bestowed on that location, but at the close counsel for de- 
fendant proposed to discuss its validity before the jury and to ask a 
verdict for some part of the ground in dispute on that title, and he 
now complains that he was not permitted to do so. 

The ruling of the court in respect to that matter was founded on 
a change in the location at the time of the survey for a patent in 
August, 1882, which as to the ground in dispute, was supposed to 
defeat the earlier location in 1881. In the first location of the Max- 
imus and Bernadotte, in the year 1881, they were relatively to each 
other and the crest of the mountain in the position shown in dia- 
gram, A. 

In the survey for patent in August, 1882, the Maximus was carried 
something like 190 feet in a south-easterly direction, so as to give it 
greater length on the south-eastern slope of the mountain, and less 
on the north-western slope; and the gênerai direction of the claim 
was changed so as to carry it over on plaintifif's claim a distance of 30 
teet more than was previously oovered by it. The Bernadotte claim 
was changed to the north-easterly side of the Maximus and parallel 
with the latter, so as to make them uniform in length and direction. 
The relative position of thèse claims thus changed is shown in dia- 
gram, G. And the position of the claims as originally located and in 
the survey for patent, together with plaintiff's claim, the Nova Scotia 
Boy, is shown in diagram, B. 

The most that can be demanded on behalf of the Bernadotte claim 



CBOBSUS MIMING, M. & S. 00. V. COLOBADO LAKO « HINEBAIi 00. 81 

18, that the territorj embraeed in the original and amended locations 
of that claim, and which is also within the Unes of plaintiff's location, 
shall be regarded as subject to and held by défendant under the first 
location certificate. Where rights hâve accrued to others in respect 
to some part of the territory covered by the location, and the change 
of lines is radical and complète, as in this instance, that proposition 
may be open to discussion. But conceding it to be indisputable, 
there was no évidence that any part of the ground in dispute was 
in that situation. It is true that in some of the plats used by the 
witnesses, a small triangular pièce of ground appeared to be covered 
by the original and amended locations of the Bemadotte, and in 




plaintiff's location called the Nova Scotia Boy, No. 2. It is so repre- 
sented in the diagram last above mentioned. But no description of the 
place was given, and the jury would not bave been able to define the 
tract if required to do so. A party must always show the nature and 
estent of his demand, and where, as in this case, it is real estate 
and a part of a larger tract claimed, he must show what part. Fail- 
ing in that respect, défendant was not entitled to go to the jury on the 
first location of the Bernadotte, nor on the first location of the Max- 
imus, for want of boundary stakes, as already explained. The jury 
was correctly instructed that the Maximus and Bernadotte locations 
could haye no earlier date than that of the survey for patent in Au- 
gust, 1882, and the question to be determined was whether the plan- 
v.l9,no.2— 6 



/82 FEDERAL BBPOETBB. 

tiff's title to the Nova Scotîa Boy, No. 2, had then accrued by the pre- 
vious performance of ail acts necessary to a valid location. 

Plaintiff's title: The first work on the Nova Scotia Boy, No. 2, was 
done in 1879 by Benjamin T. Vaughn, the locator of the claim, who 
was an alien. A. discovery shaft or eut, as required by the statute, 
•was not made in that year, however, and it became a question through- 
out the trial whether such work was done at any time before suit. 
Plaintiff offered évidence tending to prove that the work was com- 
pleted in 1880, and annual work was done on the claim in the years 
1881 and 1882. This was denied by witnesses for défendant, and 
the matter was contested before the jury in the usual way. As al- 
ready stated, Vaughn, who located the claim, was an alien, and it 
was shown that he declared his intention to become a citizen in a dis- 
trict court of the state, May 30, 1881. Défendant objected that he 
was not qualified tomake a location in the year 1880, when the claim 
was said to hâve been located ; nor was he so qualified at any time 
before the discovery ot the Maximus Iode by defendant's grantors on 
the twelfth day of May, 1881. As to the déclaration of Vaughn of 
his intention to become a citizen, a court of the state was not compé- 
tent to receive it. Défendant maintained that authority to naturalize 
an alien could not be exercised by any state tribunal, and it résides 
only in the fédéral courts. To this plaintiff replied, that any one, 
citizen or alien, may make a location, and the competency of the latter 
cannot be questioned except by the government. A location by an alien 
who has not declared his intention to become a citizen shall be main- 
tained until the government avoids it. Thèse propositions, renewed 
with some energy on the motion for new trial, do not demand much 
considération. If Vaughn was not qualified to make a location be- 
fore May 30, 1881, his déclaration of that date made him so. And 
as defendant's right, whatever it may be, to the ground in contro- 
versy accrued long after that time,Vaughn's prier incompetency can- 
not avail. The only doubt touching that matter is whether, on de- 
claring his intention to become a citizen, Vaughn could hâve advantage 
of what he had previously done towards locating the claim, and as 
to that, assuming that no other claim to the ground had intervened, 
no reason is perceived for denying his right to the fruits of his labor. 
Indeed, it may be contended that he should hold, from the first act 
done, his qualification to locate a claim, beginning with his declared 
purpose to enjoy the bounty of the government. But wearenotcon- 
cerned with that inquiry in this case. It is enough to say that Vaughn 
became qualified under the act of congress, in May 1881, and that 
what he had then done towards locating the claim should accrue to 
him as of that date. 

The authority of courts of record in the several states, under the 
act of congress, (Rev. St. 2165,) to confer the right of citizenship, has 
beenaccepted in practice and recognized without discussion by courts 
since the act was passed. Campbell v. Gordon, 6 Cranch, 176 ; Stark 



OOLLINS 17. DAVIDSON. 83 

V. Chesapeake Ins. Co. 7 Cranch, 420; Lanz v. Randall, 4 Dill. 425. 
A discussion of the question in a court of original jurisdiction at this 
time would seem to be unnecessaxy. If défendant wishes to deny the 
power of congress to confer such jurisdiction on courts of states, the su- 
prême court is a more appropriate forum for the discussion. The posi- 
tion of the plaintiff, that an alien who has not declared his intention to 
become a citizen may make a valid location of a mining claim, finds 
no support in the statute. Eev. St. 2319. But this also was anim- 
material question at the trial, since Vaughn was held to be qualified 
after his déclaration of intention to become a citizen in May, 1881, 
and the jury supported his title as having become full and complète 
prier to August, 1882. 

The motion will be oyerruled. 



CoLLiNS, Adm'r, ». Davidsoh. 
(Circuit Court, D. Minnesota, December 7, 1883.) 

1. CONTRIBOTOET NEGH-ISENCB. 

A perâon cannot recover for injuries sustained by reason of the négligence of 
another, when he has himself been guilty of négligence, but for which the mis- 
chance would not hâve occurrred. 

2. BAMB— SODDBN PriGHT. 

Imprudent conduct growing eut of sudden fright is chargeable to the per- 
soti whose négligence gave rise to the alarm. 

3. Action fok Injuries Causing Dkath— Measuhb op Damages. 

Damages, In an action by personal représentatives for injuries causing death, 
are measured by the pecuniaiy loss, including the deprivatlon of future pe- 
cuniary advantage occasioned thereby to tbose who take the beuefit of Ihe 
judgment 

At Law. 

E. M. Gard, for plaintiff. 

G. K. Davis and Williams é. Goodenow, for défendants. 

McCeaey, J., {charg'mg jury.) This suit is brought by the plaintiff, 
as administl-ator of the estate of Frank GoUins, deceased, to recover 
damages for personal injuries causing the death of said Frank Col- 
line, which injuries, as plaintiff allèges, were caused by the négli- 
gence of the défendant or his agents. The suit is brought under and 
by virtne of the provisions of section 2 of chapter 77 of the Statutes 
of Minnesota, which is as follows : 

"When death is caused by the wrongful act or omission of any party, the 
Personal représentatives of the deceased may maintain an action, if be might 
hâve malntained an action, had he lived for an injury caused by the same 
act or omission; but the action sball be commenced within two years after 
the act or omission by which the death waa caused, The damages thereon 
cannot exceed five thousand dollars, and the amduiit recdvered is to be for the 
exclusive benefit of the widow and next of kin, to b'é distributed to them in 
the same proportions as the personal property of the deceased persoa." 



84 FEDEBAL BBPOBTEB. 

The deceased, Frank Collins, came to his deatli by reason of a 
collision between the steam-boat Centennial and a small boat or skiff 
of which he was one of the occupants, at or near Lake City, on the 
Missisippi river, in this state, on the twelfth day of June, 1882. It 
is admitted that the défendant was at the time of the accident the 
owner, master, and captain of the said steamer, Centennial, and that 
at said time and place he and his agents and servants were navigat- 
ing the said steam-boat. The plaintiff allèges that the collision, and 
conséquent injury and death of the deceased, were caused by the 
wrongful açt of the défendant, his agents and servants, in negligently 
running the said steam-boat upon the small boat aforesaid. This 
allégation is denied by the défendant, and this question, to-wit, was 
the défendant, through his servants and agents, guilty of négligence ? 
is the first question for your considération. 

It was the duty of the défendant, and his agents and servants in 
charge of said steamer, to exercise ordinary care and prudence to 
avoid injury to persons in other boats or vessels in the river, and to 
avoid collision with other boats and vessels. A failure to exercise 
Buch care and prudence would be négligence, within the légal défini- 
tion of the term. Négligence ia the want of ordinary care ; that is to 
say, the want of such care as a person of ordinary intelligence and 
prudence would exercise under the circumstances. If you find from 
the évidence, and upon due considération of ail the faots and circum- 
stances shown thereby, that the persons in charge of the steamer Cen- 
tennial were guilty of négligence within the rule as I hâve stated it, 
and that such négligence was a cause of the collision which resulted in 
the death of Frank Collins, then it will be your duty to find for plain- 
tiff, uniess you f urther find that said Frank Collins, or some of those 
in the small boat with him, were also guilty of négligence which con- 
tributed to — that is, had a share in causing — the collision. And in 
considering this question of contributory négligence you will be gov- 
erned by the same rule as to what constitutes négligence that I hâve 
already given you; that is to say, the deceased, and those in the 
boat with him, were bound to use ordinary care and prudence in order 
to avoid the danger of collision, or such care as a person of ordinary 
intelligence and prudence would hâve exercised under the same cir- 
cumstances, and a failure to do so would be négligence ; and if it con- 
tributed to the injury it would be contributory négligence, and would 
defeat the plaintiff in the présent action. It was the duty of the per- 
sons in charge of the steamer to keep a lookout and to avoid collision 
with the small boat, if by the exercise of ordinary care and diligence 
it was possible to do so. It was also the duty of Collins and the 
other persons with him in the small boat to look out for passing 
steamers and to keep out of the way of such steamers, if by the ex- 
ercise of ordinary care and diligence they were able to do so. A 
failure of the persons on the steamer to perform this duty will, if 
proved, amount to négligence; a failure of the persons in the small 



OOLLINB V. DAVIDSON. 85 

boat to perform this daty will, if proved, amount to contributory 
négligence. You will see, therefore, that you are to inquire and dé- 
cide upon the évidence before you, and in the light of thèse instruc- 
tions, thèse questions : (1) Were the servants and agents of the de- 
fendant who were in charge of the steamer guilty of négligence, which 
caused, or was one of the causes of, the collision ? (2) If this ques- 
tion is answered in the affirmative, then was the deceased, Frank 
Collins, or any of the persons in the small boat with him, guilty of 
négligence which contribute to the collision and injury? 

If you décide the iirst question in the négative, you need not con- 
sider the second, because the plaintiff's case must fail if the négligence 
of the défendant 's agents and servants is not established. But if you 
décide the first question affirmatively, then you must consider the sec- 
ond, because the plaintiff cannot recover if the alleged contributory 
négligence has been established. In other words, in order to recover, 
the plaintiff must establish the négligence of défendant or his 
agents, and you must also find from the évidence that the deceased 
and those in the small boat with him were free from contributory nég- 
ligence. By going into the small boat with the other persons on board 
of it, the deceased subjected himself to the conséquences of their nég- 
ligence, if any, in the control and management of the said boat. 

In considering the question of the négligence of the persons in charge 
of the steamer, you will inquire whether the pilot saw or could hâve 
seen the small boat in time to avoid a collision; and if so, whether 
ordinary care was used to avoid such collision. And in this connec- 
tion you will consider the question whether the course of the steamer 
was directly towards the small boat, or so far to one side as to bave 
avoided the danger of collision, if the small boat had not been moved 
towards the line upon which the steamer was proceeding. In consid- 
ering the question of contributory négligence, you will inquire, in the 
light of the évidence, whether, in the effort to lift the anchor by some 
one on the small boat or by any other means, the small boat was 
moved towards the line upon which the steamer wasadvancing, and if 
so, whether such movement of the small boat was négligence and con- 
tributed to the collision ; or, in other words, whether, but for such nég- 
ligent movement, if there was such, the collision would hâve occurred. 
In the light of ail the évidence, and with spécial référence tp thèse 
inquiries, you will détermine the material question of fact as to nég- 
ligence and contributory négligence, upon which your verdict must dé- 
pend. In considering the évidence, you will bear. in mind that the 
question, what is négligence ? dépends in some degree upon the cir- 
cnmstances of the particular case under considération. The degree 
of care to be exercised dépends upon the nature of the duty being 
performed and the extent of the danger attending the situation. The 
greater the danger, the greater the care required. A person having 
control of the machinery by which a steam-boat is propelled and 
guided, is bound to use such care to avoid collision with other yessels 



86 rBDBBAL BEPOBTSB. 

as ordinary prudence would suggest. And bo a person occupying a 
email boat in or near the usual channel of passing steamers, should 
use like care and caution. In the case of sudden and unexpected 
péril, endaugering human life and causing necessary excitement, the 
law makes allowance for the oircumstance that there is little time for 
délibération, and holds the party accountable only for sueh care as 
an ordinarily prudent man would hâve exerciseu under thèse oircum- 
stanees. 

If the défendant was guilty of négligence in running his boat in a 
direction to bring him into collision with, or dangerously near to, the 
small boat, and if, by reason of such négligence, the persons in charge 
of the small boat were suddenly and greatly alarmed, and rendered 
for the moment incapable of choosing the safest course, then if what 
they did was the natural result of such fright and alarm, even if not 
the safest thing to do, it would not amount to contributory négligence. 
But if the steamer was proceeding in the usual course, and so guided 
as to avoid the small boat in case it had remained stationary, and so 
as not to go so near it as to endanger in any way the safety of the 
small boat, then the défendant was not guilty of négligence. If the 
pilot of the steamer direoted his course so as to be sure of doing no 
injury to the small boat, he hada right to assume that the small boat 
would not be moved towards the Une of the steamer. You will ob- 
serve, therefore, that if you find that the persons in the small boat 
were suddenly alarmed and took measures for their safety when ex- 
oited, and when incapable, by reason of the alarm and excitement, of 
deliberating and acting wisely, then you will oonsider and décide, from 
the évidence, whether such alarm was caused by the négligence of the 
persons in charge of the steamer. If it was, it will excuse the persons 
in the small boat of the charge of contributory négligence, provided 
they acted as men of ordinary prudence would hâve done under the 
circumstances. If the alarm was not the result of the négligence of 
the persons in charge of the steamer, or if it was a rash appréhension 
of danger which did not exist, it would not excuse the persons in the 
small boat for having adopted an unsafe course, if they did so. 

If you find from the évidence that the persons in the small boat 
were not guilty of négligence, within the rule as I hâve stated, and 
that the accident was occasioned by the négligence of the persons in 
charge of thô steamer, then you will find for plaintiff ; otherwise,you 
will find for défendant. The burden is upon the plaintiff to show by 
a prépondérance of évidence that the défendant was guilty of négli- 
gence. The burden is upon the défendant to show by a prépondér- 
ance of evideûce that the persons in the small boat were guilty of 
contributory négligence. If you find for plaintiff, you will then corne 
to the question of damages ; and in considering that question, if you 
come to it, you will bear in mind that you cainnot find more than 
$5,000, but you may find that sum or àiiy less sum. The measure 
of damages in cases of this character is a.B follows : If you find for 



MOWAT V. BBOWN. S7 

the plaintiff, you will allow him suoh damages as you deem to be 
reasonably sufficient to make good to the heirs of the deceased the 
pecuniary loss to them occasioned by his death, not exceeding the 
sum of $5,000. In determining this amount, if you corne to the ques- 
tion, you may consider any évidence before you tending to show what 
was the reasonable expectation of pecuniary benefit to Baid heirs from 
the continuance of his life. The âge of deceased, his pecuniary cir- 
cumstances, his habits of industry, his accustomed earnings, measure 
of success in business, and the like, as far as they appear in évidence, 
are proper to be considered. 



MowAT and others v. Bbown and others. 

{Circuit Court, D. Minnesota. January 10, 1884.) 

1. Oounshl's Fbbs— Law of Ontario. 

In the province of Ontario it is settled, by the case of MeJDougal v. Oampiell, 
that a barrister can maintain an action to recover his fées for services rendered 
as counsel. 

2. SAME — BlLI. OF EXCHANGB — CONSroBBATION. 

Even in those juriadictions where a counsel cannot collect his fées by prooess 
of law, an action will lie upon a bill of eichange or promissory note given in 
considération of his services. 

Stipulation is filed waiving a jury, and the case is tried by the 
court. The action is brought upon a bill of exchange accepted by the 
drawee : 

[Stamp.] 
"$1,000. Toronto, April 20, 1880. 

"Three months after date pay to the order of ourselves, at the Bank of 
Commerce, hère, one thousand dollars, value received, and charge to the ac- 
count of MOWAT, Maclennan & Dovvney. 

"To Mess. Brown & Brown, 8t. Catherines, Ontario." 

Indorsed across the face: 

"Accepted. Brown & Brown." 

Issue is joined by the answer that the considération for the bill is 
barristers' fées, and it is claimed that, by the law of the province of 
Ontario, in Canada, suit to recover such fées cannot be maintained. 

Atwater é Atwater, for plaintiffs. 

Welsk é Botkin, for défendants. 

Nelson, J. It is admitted that the law of the province of Ontario 
govems the contract ; and this case bas been argued upon the single 
point whether or not, in this province, a counsel, who is also an at- 
torney, can recover his fées for services rendered as counsel in mat- 
ters in litigation. It appears to hâve been decided by the court of 
-queen's bench, in that province, contrary to the law of England, that 



88 FBDEEAL EEPOETER. 

counsel can sue for fées. Haebison, C. J., dissenting. See McDou- 
gatt V. Camphell, Easter Term, 187T, (D. C. 41 Q. B. 332.) The chief 
justice vigorously combats the progressive views asserted by tbe ma- 
jority, "as tending to lessen the standard of professional rectitude at 
the bar. " I shall accept this décision of the court as settling the case 
upon the point controverted, and hold that, in the province of Ontaro, 
a counsel can maintain a suit for his fées, and that the common-law 
rule is modified. It may be stated hère that in England, where seven- 
eighths of the barristers réside in the city of London, a change in the 
organization of the légal profession is mooted^ to unité the functions 
of the attomey and barrister in one person, which, if adopted, (as is 
not unlikely,) will extend to a complète révolution of the common- 
law doctrine. 

But there is another reason for giving the plamtiff judgment which 
is satisfactory to my mind. The suit is upon a bill of exchange ac- 
cepted by the défendant. The fact that. the common-law doctrine pre- 
vails in the province of Ontario, should we admit it, cannot be urged 
to defeat a recovery in this case. There is nothing in the doctrine of 
an honorarium, or a gratuity, which forbids the client, or attomey, 
who engages counsel, to give, for the services rendered, his note or 
similar obligation. An action will lie for its non-payment, as the 
considération is not illégal. This is a différent thing from suing for 
fées. See Mooney v. Lloyd, 5 Serg. & E. 412. 

Upon full considération, I think judgment must be rendered for the 
amount of the bill of exchange, with interest and costs, and it is so 
ordered. 



In re Jay Cooke & Co.* 
{District CovH, E. D, Pennsylvania. December 22, 1883.) 

Bakkritptcy — Equitable Assignmbnt — Subrogation — Constructions of Stat- 
UTBS— AcTS JuNB 22, 1874, (18 St. at Large, 142,) August 8, 1882, (8t. 1882, p. 
376.) 

The Soldiers' & Sailors' Orphans' Home proved a claim against the bankrupts, 
and subsequently, by act of congress, an appropriation was made to the home 
of the amount of the daim, and the attomey gênerai was directed " to inquire 
into the necessity for and to take any measures that may be most eSectual to en- 
force any right or claim which the United States hâve to this money, or any 
part of the same, now in volved in the bankruptcy of Jay Cooke & Co." In pur- 
suance of a subséquent act, the home by deed transferred ail its property, real 
and Personal, to the Garùeld Mémorial Hospital. Held, that the United States 
had not acquired any title to the claim, either by subrogation or équitable as- 
signment, and that tbe hospital was entitled to receive the claim agaiast the 
bankrupts. 

In Bankruptcy. Exceptions to examiner's report. 

JRee article by " English Lawyer" in tlu Nation, December 20, 1883 
îReported by Albert Guilbert, Esq., of the Philadelphia bar. 



IN BE 000KB. 89 

The examiner (Joseph Mason) reported that on the twenty-fifth day 
of May, 1874, a claim for $11,350.97 had been duly proved against 
the bankrupts by the Soldiers' & Sailors' Orphans' Home. 

By an act of congress approved June 22, 1874, it was provided, 
inter alia, — 

"That the following auras be and they are hereby appropriated out of any 
moneys in the treasury not otherwise appropriated, to supply deflciencies in 
the appropriations for tlie services of the government for the^flscal year end- 
ing June 30, 1874, and for former years, and for other purposes, namely: 

"For tiie Soldiers' & Sailors' Orplians' Home, Washington city. District of 
Columbia, to be expended uuder the direction of the secretary of the interior, 
eleven thousand three hundred and fifty dollars and ninety-seven cents: pro- 
vided, that hereafter no child or children shall be admitted into said home 
except the destitute orphans of soldiers and sailors wtio hâve died in the late 
war on behalf of the union of thèse states, as provided for in section 3 of the 
act entitled 'An act to incorporate the National Soldiers' & Sailors' Orphans' 
home,' approved July 25, 1866: and provided, further, that no child, not an 
invalid, shall remain in said home after having attained the âge of sixteen 
years. 

"And the attorney gênerai is hereby directed to inquire into the necessity 
for and to take any measures that may be most effectuai to enforce any right 
or claim which the United States hâve to this money, or any part of the same, 
now involved in the banlsruptcy of Henry D. Cooke, or of Jay Cooke & Co." 
18 St. 142. 

The act of July 25, 1866, referred to, provided, inter alia, — 

"That said corporation shall hâve power to provide a home for, and to sup- 
port and educate, the destitute orphans of soldiers and sailors who hâve died 
in the late war in behalf of the union of thèse states, from whatever state or 
territory they may hâve entered the national service, or their orphans may 
apply to enter the home, and which is hereby deelared to be the objects and 
purposes of said corporation." 

But there appears to be no provision in said act for any aid, assist- 
ance, or appropriation from or the exercise of any eontrol over the 
management of the afifairs of the corporation by the United States, 
except the provision that congress may at any time thereafter repeal, 
alter, or amend the act. 

On December 15, 1879, the attorney gênerai of the United States 
gave an oificial opinion to the secretary of the treasury, in answer to 
a letter from him as to an offer made to him to purchase the claim 
in question, from which opinion are taken the following extraets : 

"On examining the statutes, it seems to me quite clear that an appro- 
priation was made for the purpose of reimbarsing the Soldiers' & Sailors' 
Orphans' Home for the moneys lost by the failure of Jay Cooke & Co., and 
that the United States treated the claim against that flrm as one which was 
thereafter its own. This reappropriation was accepted upon thèse terms by 
the home when it received the money. 

"The présent législation seems to me ample to enable the secretary of the 
treasury to demand and reçoive the amount of divldend from the bankrupt 
estate. In case there should be a refusai by that estate, it would also seem 
that the attorney général had, under the act, ample power to enforce the 
claim, and to collect, in the name of the United States, or that of the home, 



90 FZSBBAL BEPOBTEB. 

tlie amouni wnicn was due as a dividend on account of the deposit, and pay 
the same into the treasuiy." Op. Atty, Gen. vol. 16, p. 407. 

To obtaiu a direct payment of the dividends upon thîs daim to 
the United States is the purpose of the présent pétition. It avei\s 
that the sum appropriated has been paid by the United States to the 
said home, and that under the provisions of the act of congress of 
June 22, 1874, it was intended that the United States should be sub- 
stituted for the said home, as to any claim which might exist for 
this amonnt against the said firm of Jay Cooke & Co. It was there- 
fore contended by the attorney of the United States that the act 
referred to, ipso facto, effeoted an équitable assignment of the claim 
to the United States, but he was unprepared to prove either the fact 
of payment of the appropriation, or the matters set forth above in 
the opinion of the attorney gênerai, as to the nature of the aceept- 
ance of the appropriation. It appeared, further, upon the hearing. 
that by an act of congress, approved June 20, 1878, an appropria- 
tion of $10,000 was made for the support of the said corporation, 
including salaries, etc., with the foUowing proviso : 

"Provided, that the institution shall be closed up and discontinued during 
the ensuing fiscal year, and that the title to the property, real and Personal, 
shail be eonveyed to the United States before any further payments are made 
to the trustées of the said institution." 20 St. 209. 

And that by another act of congress, approved August 8, 1882, it 
was provided as foUows : 

"That the board of trustées of the National Soldiers' & Sailors' Orphans' 
Home, of the District of Columbia, are hereby empowered to tranafer and 
convey ail the property, real, personal and mixed, of the National Soldiers' & 
Sailors' Orphans' Home to the Garfleld Mémorial Hospital, located in said 
district; and the said Garfleld Mémorial Hospital is hereby empowered to sell 
and convey the same, and apply the proceeds to the object for which it was 
incorporated; provided that this act shall not be construed to make the United 
States liable in any way on account of said transfer, or the changing of the 
direction of the trust.» St. 1881-82, p. 376. 

On June 2, 1883, a pétition for intervention, (in the proceedings 
pending as to the elaim in question,) of the Garfleld Mémorial Hos- 
pital was presented, praying that it be substituted to the rights and 
title of said Soldiers' & Sailors' Orphans' Home, and that the award 
be made in its favor, and that its pétition be taken and considered as 
an answer to the pétition ûled by the United States. This pétition 
of intervention set forth, inter alla, the incorporation of said Garfleld 
Mémorial Hospital and the act of congress of August 8, 1882, (re- 
cited in the register's former report,) and that by deed dated October 
2, 1882, duly executed and recorded, the trustées of the said orphans' 
home, eonveyed, transferred, and assigned ail the assets of that cor- 
poration, including said award, to the Garfleld Mémorial Hospital. 
A copy of said deed was produced reciting a resolution of the board 
of trustées of said orphans' home, to transfer and convey ail the prop- 
erty real, personal, and mixed, of said orphans' home to said Gar- 



IN BB COOEE. 91 

field Mémorial Hospital, and that for the purpose of carrying ont the 
transfer and conveyance, David K. Cartter, président, and Marcellus 
Bailey, secretary of the board, be and they were thereby authorized 
and empowered to exécute, acknowledge, and deliver for and in the 
name of said orphans' home, a deed or deeds oonveying and trans- 
ferring ail of said properfcy to said Garfield Mémorial Hospital, /oi- 
lowed by appropriate terms of conveyance of certain real estate in 
the city of Washington, described by metes and bounds, "and also ail 
other property of said party of the first part, whether real, personal, 
or mixed, in said District of Columbia," but containing no spécifie 
référence to or statement of the claim against Jay Cooke & Co. 

Pending the considération of the subject before the register, the 
dépositions of David K. Cartter, président, and Marcellus Bailey, 
treasurer of the orphans' home, were taken on behalf of the United 
States. By their testimony, it was proposed to prove the purpose 
and payment of the appropriation in the act of June 30, 1874, (re- 
cïted in the former report,) and that upon its receipt it was agreed 
that the claim of the orphans' home against Jay Cooke & Co. should 
be transferred to the United States. The purpose of the appropria- 
tion and its payment are clearly established and are not disputed by 
any of the parties to the présent controversy. As to the nature of 
the acceptance, the président testifies as follows : 

"It was an understanding by me that inasmuch as there was an appropriar 
tien to supply a deflciency of Henry D. Cooke, the treasurer, whose funds as 
such officer to a like araount were on deposit with Jay Cooke & Co., at the 
time of their failure, that it would be reimbursed the TJnited States eut of 
the assets of the bankrupt firm. I cannot say with certainty as to the un- 
derstanding of the board. I hâve ndt the records in my possession, which 
may show what the understanding was." 

The treasurer, after testifying that the payrûent of the appropria- 
tion had been made to him as treasurer, in answer to the question 
whether said money was not received by said home with the under- 
standing that the United States was to be entitled to reçoive ail 
moneys that might thereafter be reoovered from the firm of Jay 
Cooke & Co., say s: 

"I am not able to state whether such an understanding as that referred to 
in the interrogatory was had prior to the time I became connected with the 
home. I do not recall any action of the board of trustées after I became a 
member of it, touching this matter, nor do I believe there was any." 

Several objections were made on behalf of the Garfield Mémorial 
Hospital to thèse dépositions, but as the testimony fails to prove any 
corporate action of the orphans' home as to the receipt of the money, 
it is unnecessary to consider them. While the orphans' home ap- 
pears to hâve refrained 'from drawing the dividends from the bank- 
rupt estate, there is no évidence of any actual assignment by it of the 
claim to the United States or that the appropriation of the act of 
June 20, 1878, of $10,000, with the proviso (recited in the former re- 
port) of conveyance of the property of the home to the United Statea 



92 FEDBEA.L EEPOBTEB. 

was accepted by the home, or that anything was done in accordance 
with the terms of said proviso. The subséquent act of August 8, 
1882, was evidently a repeal of or substitute for this proviso. 

The principal question for détermination, therefore, seems to be 
simply whether the acceptance of the appropriation made by the act 
of June 30, 1874, worlced an asaignment of the claim of the orphans' 
home to the United States, or, in other words, whether such an assign- 
ment was an expressed or implied condition of the gift by the United 
States. 

In the first place, it is to be observed that the sentence, "and the at- 
torney gênerai is hereby directed to inquire into the necessity for and 
to take any measures that may be most effectuai to enforce any right 
or claim which the United States bave to this money or any part of 
the same now involved in the bankruptcy of Henry D. Cooke, or of 
Jay Cooke/&Co.," is, if taken literally, inexplicably obscure and with- 
out intelligible meaning ; for the only money mentioned is the money 
then being appropriated, and how that can be involved in any bank- 
ruptcy, or that there can be any right or claim of the United States 
to be enforced with respect to it, is utterly incompréhensible. It is 
therefore very apparent that some words necessary to give cohérence 
to the language bave been omitted. Another part of the same statute, 
however, very clearly suggests what thèse words are. 

Henry D. Cooke, it appears, was also treasurer of tire reform school 
of the District of Columbia, and as such officer had deposited the 
funds belonging to said corporation also with Jay Cooke & Co. To 
supply the deficiency in this case oceasioned by their fallu re, it was 
likewise provided by the act of June 30, 1874, (18 St. 146,) that the 
sum of $31,772.29 should be appropriated to reimburse the fund of 
the reform school in the District of Columbia, for work done and 
materials f urnished in the érection and f umishing of the buildings and 
grounds of the same; and the attorney gênerai was also directed "to 
take such measures as should be most effectuai to enforce any right 
or claim which the United States hâve to this amount of money, 
or any part thereof, now involved in the bankruptcy of Henry D. 
Cooke, or of Jay Cooke & Co., the same having been in the hands of 
Henry D. Cooke as treasurer of said reform school at the time of his 
bankruptcy, and being then moneys belonging to the United States, 
and to inquire into this loss of the public moneys and ascertain who 
is responsible therefor, and institute such prosecutions as public jus- 
tice may require, and that he report his proceedings therein to con- 
gresB in his next annuial report." Interpolating, therefore, the words 
"amount of " in the sentence quoted from the section of the orphans' 
home appropriation, and adding thereto (in accordance with the fact) 
"the same having b^en in the hands of Henry D. Cooke as treasurer 
of said Soldiers & Sailors' Orphans' Home," remove ail ambiguity and 
obscurity of expression. 

As I assume that it will not be pretended that the mère gift to this 



IN BB OOOEB. 93 

charity, to relieve its temporary embarrassment, caused by the failure 
of its baukers, entitles the donor to its claim agaiust the bankers as a 
matter of right, (irrespective of what gratitude might suggest,) the dé- 
termination of the true construction and purpose of this addendum 
to the act of appropriation will be décisive of the présent controversy. 

Fortunately, as to the meaning of the similar words in the other 
appropriation, there is the judioial interprétation of the late judge of 
this court given in the présent case, upon the présentation of the 
question by the direction of the attorney gênerai of the United States, 
who, pursuant to the requirement of the statuts, caused aproof to be 
made of the moneys due the reform school as a debt to the United 
States. In disallowing this proof (in an opinion filed February 4, 
1876) the court, Cadwalader, J., said: 

" The présent purpose of tendering proof in the name of the United States 
is manifestly to obtain a statutory préférence to the whole amount of the 
debt in question instead of a simple dividend, to which alone the local cor- 
poration, if the créditer, is entitled, I am of opinion that the debt is to 
the local corporation, and is not entitled to a préférence. When the f und, 
of which- that now claimed is the balance, was paid from the treasury of the 
United States to the treasurer of the local corporation, it became the money 
of that corporation, which is therefore the créditer entitled to make proof." 

No appeal was taken from this décision. The local corporation sub- 
sequently made proof and appears to hâve received ail the dividends, 
and no further claim of any nature appears to hâve been made by the 
United States therefor, ' 

Now, while it is true that the présent contention on behalf of the 
United States of subrogation to the claim of the creditor for a divi- 
dend (and not a préférence) does not appear to hâve been made in 
argument or passed upon by the court, and therefore this opinion 
may not be justly considered as altogether conclusive of the présent 
question, yet the absence of suggestion of such a right of the United 
States, and the subséquent payment of the dividends to the corpora- 
tion claimant, show that no other view was entertained by the court, 
or the law offioers of the United States, than that the whole object of 
the addendum to the act of appropriation was simply to endeavor 
to secure a préférence in the distribution of the estate of the bank- 
rupts. Such a purpose was entirely consistent with the spirit of the 
législation, the relief of the charities ; to obtain for them, if possible, 
in the name of the United States, a position in the court of bank- 
ruptcy, which in their own names could not be accorded to them. 
To attribute to the woi'ds used the further purpose of endeavoring 
to obtain for the United States reimbursement for the moneys then 
being donated, seems unwarrantable, because an express proviso that 
the charity assign its claim to the United States could bave been 
readily added to the provisos already annexed to the gift. That 
there is no such proviso is conclusive that such was not the législa- 
tive intent. The addition of it woald hâve rendered unnecessary any 
action by the attorney gênerai, and would indeed hâve been inconsist- 



dé FEDEBAIi BEPOBTSB. 

ent with the olaim for a préférence; for the United States, as as- 
signée, could hâve no greater right than its assignor. U. S. v. Bu- 
ford, 3 Pet. 12, 

It seems, therefore, reasonably clear that upon the assumption that 
because the United States had made large appropriations of money 
to both the orphans' home and the reform school, portions of which 
moneys were on deposit with the bankrupts at the time of their fail- 
ure, it was sapposed that possibly a claim might be sustained against 
their estate, as if the money had been deposited by the United States 
directly, and a priority in distribution be thus obtained. Congress, 
therefore, when making an appropriation to supply the losB by the in- 
solvency, thought expédient to direct the attorney gênerai to consider 
this view of the matter and endeavor to enforce it by appropriate ac- 
tion. Greater prominence was probably given to the case of the re- 
form school, as appears from the greater particularity of spécifica- 
tion of its supposed right in this respect, because it seemed to gather 
additional support from the fact that the reform school was an aux- 
iliary to the administration of justice in the District of Columbia, was 
wholly supported by congressional grant, and was under direct govern- 
mental supervision ; but by a suggestion of the right of the United 
States in either case it was not intended to stipulate for any return 
for the gift then made, and no such condition, it is respectfully sub- 
mitted, can be found either by actual expression or implication in 
the act of appropriation. 

The register therefore recommends that the prayers of the pétition 
of the Garfield Mémorial Hospital be granted, and that the Costa of 
the présent proceedings be paid by the trustée of the estate of Jay 
Cooke & Co., out of the dividends upon the claim of the National 
Soldiers' & Sailors' Orphans' Home. 

The United States excepted to this report. 

J. K. Valentine, Dist. Atty., and Henry P. Brown, Asst. Dist. Atty., 
for the United States. 

L. W. Barringer and Reginald Fendall, for Garfield Mémorial Hos- 
pital. 

BtiTLEE, J. Exceptions dismissed and report affirmed 



In re Jessup, Bankrupt. 

(jDi'sfrici Court, 8. D. New York. January 10, 1834.) 

1. Bawkruptot—Disohakgb— Section 5110, subd. 2. 

Whtre a bankrupt, after bis adjudication, but before tlie appointment of an 
assignée, sold a piano which he had included in hia schedules of property, re- 
ceived the proceeds, and paid them from time to time in part for fées to hia 
attorneyg for use in the bankruptcy proceedings, heîd, this act was in viola- 
tion of subdivision 2, § 5110, Rev. St., and forfeited his right to discliarge. 



IN BE JESSUP. 95 

2. Same-Sale of Propeett aptjsb Pétition Filed. 

The bankrupt, after flling his pétition, has no right to sell anj of his prop- 
erty even to raise money to pay lawf ul fées. 

Bankrapt's Discharge. 

J. W. C'ulver, for the bankrupt. 

P. é D. Mitchell, for opposing creditors. 

Brown, J. The only objection which is available to the opposing 
creditors is that in relation to the sale by the bankrupt of a piano 
belonging to him at the time of his pétition in bankruptcy, and in- 
oluded in the sehedules filed by him. The exact date of the sale ia 
not in proof ; but as the bankrupt has failed to show that the sale of 
it was prior to his pétition, and as it is included in the sehedules 
filed by him, it must be assumed to hâve been made after the filing 
of his pétition and sehedules in 1877. Section 5110, subd. 2, pro- 
vides that "a discharge shall not be granted if the bankrupt has 
been guilty of any fraud or négligence * * * in the delivery to 
the assignée of the property belonging to him at the time of the 
présentation of his pétition and inventory, except such as he is per- 
mitted to retain under the provisions of this title, or if he has caused, 
permitted, or suffered any loss, waste, or destruction thereof . " The 
piano was not an article which the law authorized the bankrupt to 
retain. He sold it to the Chiokerings, according to his own testi- 
mony, for about "$240 or $250 — ,might hâve been |200." He says 
he applied the proceeds to pay for "légal proceedings in this bank- 
ruptcy proceeding;" that he paid it to his attorneys. "Question. AU 
that you got for the piano ? Answer. I don't reoollect, as I paid by 
installments, — sometimes one amount, sometimes another, as the 
case demanded." The évidence of one of his attorneys shows vari- 
ons payments to the register, clerk, and marshal during the pend- 
ency of the bankruptcy proceedings, amounting altogether to about 
$150. 

The sale of the piano by the bankrupt after the filing of his péti- 
tion was a plain violation of subdivision 2 of section 5110. It makes 
no différence whether the sale was before the appointment of the as- 
signée or after. Before the appointment of an assignée the bank- 
rupt was himself a trustée in respect of his property for the benefit 
of his creditors ; he was bound to préserve it for delivery to the as- 
signée when appointed. March v. Heaton, 1 Low. 278; In re Stead- 
man, 8 N. B. E. 319. The resolution for a composition not having 
been presented to the court for approval for a long period, the delay 
of the bankrupt in this respect, as well as his acts in the mean time, 
were entirely at his own risk. When, in 1883, after slumbering 
nearly six years, the composition proceedings were revived, presented 
to the court, disapproved, and set aside, and an assignée appointed, 
this revival of the old proceedings could not be available for the 
bankrupt'e discharge, except on the condition that his acts in the 
mean time had not violated any of the provisions of section 5110. 



96 FEDËBAL BEFOBTEB. 

Even if the sale of the piano, or of other property, after fîling his pé- 
tition and Bchedules, for the purpoae of defraying expenses of bank- 
ruptcy proceedings, could in any case be justified, the explanation in 
this case is not sufficient, since it does not cover the whole proceeds, 
taking as it stands every word of the testimony given by the bank- 
rupt and his attorney on that subject. While a portion of the ex- 
pansés testified to might doubtless hâve been allowed out of the pro- 
ceeds of the estate, it does not appear that this would apply to ail or 
even the major part of the expenses testified to. It is plain, also, 
from the bankrupt's testimony, that there was no spécifie application 
of the proceeds of the piano to thèse expenses; but that, having got 
from $200 to $250 by this sale in 1877, he afterwards, as the pro- 
ceedings in bankruptcy required, — most of which bave been within a 
year past, — paid to his attorneys such sums as they demanded. I 
would not intimate, however, that a bankrupt, after having filed his 
pétition and schedule, may dispose of his property even for the pay- 
ment of bankruptcy feea. Such a course is incompatible with the 
rights of the assignée, would be liable to manifest abuses, would raise 
embarrassing questions concerning the manner and bonafidesoî such 
sales and the disposition of the proceeds, and is, I think, whoUy in- 
admissible ; and it is, also, so far as I bave found, wholly unsupported 
by any authority. The provisions above quoted very plainly forbid 
any such disposition by the bankrupt, and make it his duty to turn 
over ail the property belonging to him at the time of the présenta- 
tion of his pétition and inventory to his assignée, unless that is su- 
perseded by a composition approved by the court. The advice of 
counsel is, in such a case, no défense ; nor is the absence of a fraud- 
ulent intent material. The statute déclares the "discharge shall not 
be granted if he has been négligent in such delivery, or bas caused or 
sufiFered any loss or waste of his property." I must hold his acts in 
regard to the sale of the piano unauthorized and unlawful, and such 
as section 5110 visits with a déniai of his discharge. In re Finn, 8 
N. B. E. 525 ; In re Thompson, 13 N. B. E. 300. 
The discharge cannot, tlierefore, be granted. 



Helleb and another v. Batjeb and others.' 

{Oireuit Court, 0. D. Missouri. Januarj 7, 1884. 

Patbnt pob Pkocess— Inpbingembnt. 

Where a patent process consista of a nuraber of steps, ail well knpwn except 
the flist and last, the use of ail except the flrst and last steps wlll not infriage 
the patent 

IBeported bj Eenj. F. Rex, Esq., of the St. Louis bar. 



UNITED STATES DAIRY CO. V. SMITH. 97 

In Equity. 

M. McKeag for plaintiffs. 

E. J. O'Brien for défendants. 

Treat, J. This is a suit for an alleged infringement of plaintiffs' 
rigbts under patent No. 164,858. The patent is for a process "in- 
tended for ail oil-finished work when it is desired to represent a rioh 
veneering, or imitation of wood." The successive steps of the pro- 
cess are enumerated in the claim and set out in the spécifications. 
There is nothing new in the pigments used, nor in their mixtures 
with oil. Such mixtures were known long before the patent was 
issued, — not only in oil, but also in water and béer. Nor was there 
anything new in the use of a crumpled cloth, for the manipulation 
mentioned, to work out the blending of colors, so as to imitaiie dififer- 
ent kinds of woods. The patent contains no disclaimers, and there- 
fore it is somewhat vague in its terms. A proper construction, how- 
ever, shows clearly enough that it is for a process for enameling 
wood, consisting essentially of successive steps to be taken in the use 
of varions pigments, etc., as described; each of which steps is an 
essential part of the process itself. 

It appears from the évidence that the défendants did not use either 
the first or last of the steps named, and it is doubtful whether the 
plaintiffs hâve «ver used either of them. The other steps were well 
known, and had long been in use, and no patent therefor would bave 
been grantable. If the addition of the first and last steps enumer- 
ated made a new process within the purview of the patent law, it is 
obvious that there could be no infringement unless those were used. 
It is doubtful whether the patent is not void for want of novelty, but 
it is not necessary to décide that question. It is clear that no in- 
fringement bas been proved. 

The bill will be dismissed, with eosts. 



United States Daibt Co. and others v. Smith. 

[Circuit Court, 8. D. Nm York. August 4, 1880.) 

Patents for Inventions— Patent No. 146,012— Motion fok Ihjunction Dk- 

NIED. 

Blatchfobd, j. Patent No. 146,012 seems to make the use of the 
udder necessary in divisions 6 and 7 of the spécification, in obtain- 
ing from margarine the resulting material. There is no suggestion 
that it may be dispensed with, or that auy good resuit can be ob- 
tained without using it. In the reissue the udder is omitted in the 
description, and in claims 5 and 6, and then it is stated that the use 
is "expédient." If the use of the word "expédient" brings in the ud- 
v.l 9,no.2— 7 



98 FEDEEAL EEPOKTEE. 

der as parts of claims 5 and 6, the défendant does not infringe. If 
the use of the udder is no part of those claims, then the reissue, as to 
those claims, claims inventions not suggested or indicated in No. 
146,012, and is invalid. It may be that the proofs for final hearing 
may put the case in a différent aspect, but, as the case now stands, 
the foregQing considérations are sufficient to require that the motion 
for injunction be denied. The same disposition is made of the mo- 
tions as to Flagg and Boker. 



KoEMBB V. NbWman and others. 
(Circuit Court, D. New Jersey. December 22, 1883.) 

1, Patents for Invention — Injunction — Contempt. 

Where défendants hâve consented to a decree that a patent is valid, and an 
iujunction restraiuing them from using the inechanistn which it embraces, 
they must obey the writ until it is dissolved, and cannot, in a proceeding for 
contempt, assail the validity of the patent. 

2. Same— Agkebmbkt bbtwben Parties— Evidence — Decree Reopbnbd. 

As the évidence in thia case is conflicting, and leaves the question as to 
■whether complainant allowed défendants the privilège of using the fastening 
claimed to infringe his patent, the rule to show cause why they should not be 
attaohed for contempt should not be made absolute, but the decree pro eonfeaso 
should be reopened, the release of damages cauceled, and the case pruceed to 
final hearing. 

On Attachment for Contempt. 

Briesen é Betts, for the motion. 

A. Q, Keasbey é Sons, contra. 

Nixon, J. This is a motion for attachment for contempt against 
the défendants for violating an injunction. The petitioner brought 
an action in this court against the défendants for the infringement of 
letters patent No. 195, 233. No answer was filed. A decree pro con. 
was entered, and an injunction was issued restraining the défendants 
from any further infringement of said letters patent. The allégation 
of the pétition is that the injunction has been violated. The défend- 
ants set up three grounds of défense : (1) That the complainant's 
patent is void; (2) that before the decree pro con. was taken the 
complainant conceded to the défendants the right to use the fastening 
whieh is now complained of; and, (3) that there has been no in- 
fringement. 

1. With regard to the first défense, it is only necessary to say that 
the défendants are not allowed in this proceeding to assail the validity 
of the patent on whieh the injunction has been issued. They con- 
sented to the decree that the patent was valid, and to the injunction 
restraining them from using the mechanism whieh it embraoed, and 
they must obey the order of the writ until it is dissolved. Pklllips v. 
City of Détroit, 16 0. G. 627. 



DAVIS «. PBEDEEICK8. 99 

2. The bulk of the testimony bas been directed to the second 
point, to-wit, whather the complainanfc agreed with the défendants 
that the manufacture and use of a certain fastening, marked in this 
proceeding Exhibit A, would be regarded by the complainant as a 
violation of the injunction. There is no doubt that the irianufacture 
complained of, and whieh is alleged to be a violation, no more nearly 
resembles the invention claimed by the complainant's patent than 
does Exhibit A; and if the testimony shows that at the time of agreé- 
ing to the decree it was understood between the parties that Exhibit 
A was not an infringement, the complainant should not be allowed, 
on this motion for contempt, to stop its manufacture and use. The 
testimony is oonflicting. The complainant dénies that there was 
any admission made or license granted for the use of Exhibit A, and 
the défendants produee several witnesses who are sworn to prove it. 
It is diflScult to détermine where the truth lies, and it is charitable 
to hope that there was an honest misunderstanding between them. 
At the time that the decree pro con. was allowed against the défend- 
ants, the complainant signed a paper releasing them from ail claims 
for damages and profits. Possibly both parties were acting under a 
misapprehension, and the best solution of the case, in my judgment, 
is for both to agrée that the decree should be opened, the release of 
damages canceled, and the suit proceed to a final hearing. 

At ail events, I am not willing, on the évidence taken, to make the 
rule to show cause why the défendants should not be attached for 
contempt absolute. The same is discharged, but, under the circûm- 
stances, without costs. 



Davis v. Pbedeeioks. 
(drcuit Cour', S. I). New York. January 2, 1384.) 

1. Patents pob Inventions— Patent ABn:,iTT. 

Letters patent No. 84,803, granted to Thomaa B. Davis, on Deoember 6, 
1868, for an improvement in scoops, Jield to embody a patentable Invention. 

2. Same — Calculatioîi and Expkkiment Conthastkd with Mechanical Skill. 

A repult wliicli required calculation and experiment beyond meclianical skiU 
and good workmanslilp is entitled to be classed aa inventive. A new tliing 
produced,better for somepurposes than liad been produoed before, altliougli it 
appeara easy of accomplishment when seen, is such success as is within the 
benelits of the patent law. 

3. Same— Public Use. 

Where an inventor gives another an article embodying his invention, and, 

without his knowledge or consent, it is ahown to others, who manufacture and 

sell the aame for two yeara prier to an application for a patent, this will not 

' constitute a public use within the meaning of the acts of 1836 and 1839, and 

render the patent void 

In Equity. 



100 TEDEBAL EBPORTBE. 

Andrew J. Todd, for orator. 

Charles F. Moody, for défendant. 

Wheeler, J. This suit is brought upon a patent granted to thf> 
orator, numbered 84,803, dated December 6, 1868, for an improve- 
ment in scoops. The défenses relied upon are want of invention, and 
prior public use. The orator appears to hâve made the invention in 
the fall of 1865, and to hâve made application for the patent June 
6, 1868. The first scoops, so far as shown, were struck up by ham- 
mering, in one pièce, except the handle. Then they were made of 
sheet-metal, eut into shape in one pièce, bent up, and fastened at the 
joints, ready for the handle. They had oval surfaces, and would not 
rest firmly and hold their contents securely when set down. The 
orator's scoop was made from one pièce of sheet-metal, eut into such 
peçuliar shape that when bent up and fastened it had a fiât surface 
on which it would rest when set down, fuil or partly full, so as to hold 
the contents securely; and the acting parts were well shaped and 
strengthened in making them of this form. To fix upon the neces- 
sary pattern for the sheet-metal to produce this resuit must hâve re- 
quired calculation and experiment beyond the practice of mère me- 
chauical skill and'good workmanship. It seems to be entitled to be 
classed as inventive. A new thing was produced, better for some pur- 
poses than had been produced before, although many skilled workmen 
had been practicing the making of thoae known before, and making 
as good as they could without reaching this. He hit upon this while 
no one else did, although it appears to be easy of accomplishment 
when seen. This success seems to be within the benefits of the pat- 
ent law. 

From the évidence it appears that the orator showed his invention 
to one Eay, and gave him a scoop embodying it, and afterwards an- 
other at his request, but not to sell. Without the orator's knowledge 
he gave them to others, who commenced making them for sale, so that 
they were in public use and on sale, but without his consent or al- 
lowance, more than two years prior to his application. It is not con- 
sidered that this being in public use and on sale without the consent 
or allowance of the inventer invalidâtes the patent, under the acts of 
1836 and 1839, by force of which it was granted, and by the con- 
struction of which its validity is to be determined. Camphell v. 
Mayor, etc., of New York, 9 Fed. Eep. 500. The case of Shaio v. 
Cooper, 7 Pet. 292, cited for the défendant upon this point, arose 
under the act of 1800, (2 St. at Large, 37,1 in which it was provided 
that every patent which should be obtained pursuant to that act for 
any invention, art, or discovery which it should afterwards appear 
had been known or used préviens to the application, should beutterly 
void, and is not an authority upon this question. In Eghert v. Lipp- 
mann, 104 U. S. 333, the language of the opinion of the majority of 
the court, as well as that of Mr. Justice Millee, dissenting, seems ta 



THE TITANIA. 101 

favor the view that consent or allowance of the inventor is necessary 
to invalidate the patent under thèse acts, although this question was 
expressly left open. 
Let there be a decree for the orator, with costs. 



Thë Titania. (Two Cases.) 
{District Court, S. D. MiB York. December 29, 1883.) 

1. SniPPiNG— Lex Loci. 

On a shipment of goods in England, upon an English vessel, on an ordinary 
bill of lading, the liability of the vessel Is to be determined according to the 
law of the place of shipment, as the law of the flag. 

2. Same — Insuiîance — Bills of Lading — Exception — Damage that May bb In- 

sured again8t. 

A clause in a bill of lading that the ship-owner shall " not be Viable for any 
damage to goods capable of being covered by Insurance," helê, to refer only to 
insurance obtainable of the ordinary Insurance companies, iu the usual course, 
of business, or on spécial application, and not to insurance whfch might possi- 
bly be obtained in spécial or peculiar Insurance associations, and thus con- 
Btrued, was a valid exception 

3. Samb— Stowagb— Injury to Goops. 

Where goods in one of the compartraents of the steamer T. were injured by 
a spare propeller which was stowed and fastened in the same compartment, 
and on the T. 's sixth voyage broke loose during a severe gale, and, in being 
tossed about, broke through the aides of the ship, whereby water was taken 
aboard, hdd, that the damage thus caused was a damage by a "péril of the 
seas," and within the exceptions of the bill of lading, it being found that the 
propeller was properly stowed. 

4. Same— SBAWoRTHrNEss. 

Proper stowage of articles which, on becoming loose, may imperil the safety 
of the ship, is one of the éléments of seaworthiness. 

5. Same— AvoiDiNG Damage— Négligence. 

Where the damage might hâve been avoided by the use.pf ordinary care and 
diligence on the part of the ship, the insurers are not liatle ; the négligence, 
and not the périls of the seas, is then considered the proximate cause of the loss. 

6. Same — Cubtoms and Usage. 

The seaworthiness of a vessel is to be determined with référence to the cus- 
toms and usages of the port or country frora which the vessel sails, the existing 
State of knowledge and expérience, and the judgraent of prudent and compé- 
tent persons versed in such raatters. If, judged by this standard, the ship is 
found in ail respects to hâve been reasonaoly fit for" the contemplated voyage, 
the warranty of seaworthiness is complied with, and no négligence is legally 
attributable to the ship, or her owners. 

7. Same — Ship-Owners' Liability. 

Though ship-owners are liable for latent defectg, this principle does not af- 
fect the seaworthiness of the vessel where, if ail the facts were known «t the 
time she sails, she would still be regarded by compétent persons as reasonablj 
fit for the voyage, according to the existing knowledge and usages. 

8. Same — Phopbr Stowage. 

Stowage, according to custom and usage, and the best judgment of experi- 
enced persons, is sufïicient to protect the ship from the charge of négligence, 
as against insurers. 

9. Same— Case Stated. 

Upon the facts in this case, Tield, that the spare propeller wag sufflciently 
stowed, according to such knowledge and judgment ; that the vessel was sea- 



102 FEDEBAL EEPOBTEE, 

worthy at- the time she sailed ; that the injury to the goods could l>e covered 
hy an ordinary policy of Insurance ; and that the libelants could not, therefore, 
recover of the ship or her owners for the damage in question. 

The libels in thèse two cases were filed to recover damages for in- 
juries to merchandise, consisting of burlaps and paper stock, dur- 
ing the voyage of the steamship ïitania from Dundee to New York, 
through the spare propeller becoming unfastened and being tossed 
from side to side in the ship in the compartment where thèse goods 
were stowed. The Titania was a steamship belonging to the Eed 
Cross line of steamers, plying between Dundee and New York. The 
goods were shipped on the ninth of October; the vessel sailed from 
Dundee on the llth. On the forenoon of Saturday, the 22d, when 
about two days off from Halifax, she encountered a "hard gale and 
very heavy sea, and the ship labored heavily, the ship lurching at 
times 35 degrees," according to the statement in the log. The 
gale increased throughout the day, the ship rolling fearfully. At half 
past 9 in the evening, it being found that the ship was making water, 
an examination was made, and the spare propeller between decks 
was found to be adrift, and that it had knocked holes through the iron 
plates on each side of the ship in that compartment; and parts of 
the cargo and dunnage were afloat in the water taken in through thèse 
holes. The Titania thereupon put into Halifax, accompanied by an- 
other vessel, where she arrived on the morning of the 25th; after re- 
pairs she proceeded to New York, which she reached on the second 
of November. The Titania was a steamer of about 1000 tons, and her 
building was completed in May, 1880. This was her sixth trip across 
the Atlantic. The spare propeller, weighing from four to five tons, 
was put between-decks near the mainmast, and secured by chains 
carried through the bosa at the axis of the propeller, and fastened to 
four ring bolts, secured to iron plates, which were riveted through the 
iron deck, one between each blade of the propeller, with wooden 
chocks near the ends of the blades. 

A good deal of évidence was given on the part of the claimants 
tending to show that it was customary for steamers to carry a spare 
propeller, and that this one was fastened in one of the most approved 
modes, and in the usuat manner, with the best material, and in strict 
accordance with Lloyd's rules, spécial survey, and believed sufScient 
by persons having very large expérience in fastening and securing 
such propellers. Before leaving Dundee on the last trip, the chief 
of&cer, as he testified, examined the fastening of the propeller care- 
iuUy, feeling each turn of the chain, and found it taut and tight, as 
on the previous voyages. After the accident the chain was found in 
pièces; one of the ring-bolts broken, and one of the plates toj-n and 
rent; the rivets were out of their holes; but the margin of the holes 
did not présent the appearance of the bolts having been drawn out 
through them. The chains had been made taut by wooden wedges, 
driven between the top of the boss and the chains above, near where 



THE TITANIA. X08 

the chains pass down throngh the holes in the center of the boss. 
The bill of lading contained the usual exception of injury through 
"périls of the sea," and various other spécial clauses, among whichit 
was provided that the ship-owner is "not to beliable for any damage 
to any goods which is capable of being covered by insurance." /. 

The libelants contended that the yessel was unseaworthy, when she 
sailed, through the insufhcient f astening of the propelier. The def ects 
alieged were, chains of insufficient size; an insufi&cient numberof riv- 
ets f astening the plates to the deck; that the deck beneath was not 
strengthened ; that the ehocks were not bolted to the deck; but, most 
important of ail, that the wedges which were used for tightening were 
of yellow pine, and too small in size. Through the loosening of thèse 
wedges, as it was surmised by the libelants, some play was probabiy 
first afïorded for the motion of the propelier, and after that, in the 
heavy rolling of the ship, breaking loose naturally and inevitably fol- 
lowed. There was no évidence, however, to show what first gave 
way, or in what particular manner the propelier broke loose. The 
Titania on this voyage was very ligbt, and in conséquence rolled 
more than she otherwise would in the heavy seas. The olaimants 
contend that the ship was in ail respects seaworthy; that thefasten- 
ings of her propelier were in ail respects proper and sufficient ; and 
that the accident was properly to be ascribed to the périls of the 
seas ; and also that the loss in question was subject to the spécial 
exception above referred to, beeause it was capable of being covered 
by insurance. 

Treadwell Cleveland, for libelants. 

Goodrich, Deady é Platt, for claimants. 

Beown, J. The bills of lading in thèse cases contain numerous 
exceptions from liability on the part of the ship-owner, only two of 
which seem applicable to this case, namely, the gênerai exception of 
"périls of the seas," and the spécial exception that "the ship-owner is 
not to be liable for any damage to any goods which is capable of being 
covered by insurance." If the breaking loose of the propelier and 
the conséquent damages to the goods arose through négligence in the 
proper stowage or fastening the propelier, then it cannot be covered 
by either of thèse exceptions. The shipraent being made in England, 
and on an English vessel, the law of the flag governs. Lloyd v. Gui- 
hert, L. E. 1 Q. B. 115; Clmrtered, etc., v. Netherlands, 9 Q. B. Div. 
118; 10 Q. B. Div. 521; The Gaetano é Maria, 1 Prob. Div. 137; 
Woodley v. Mitchdl, 11 Q. B. Div. 51. But although, under the Eng- 
lish décisions, it seems to be settled that ship-owners may exempt 
themselves from damages caused even by their own négligence, pro- 
vided this intention be imequivocally expressed, (Maol. Ship. 409, 
note; Chartered Mercantile, etc., v. Netherlands, etc., 9 Q. B. Div. 118, 
122; 10 Q. B. Div. 521; Steel v. State Line, etc., 3 App. Cas. 88;) 
yet such causes of spécial exemption, being inserted for the benefit of 
the ship-owner, are construed most favorably to the shipper and most 



104 FEDERAL BEPOKTEn. 

Btrorigly against the ship-owner, and will not be held to embrace the 
latter's own négligence, unless that be specially excepted in connection 
with the actual cause of the loss. Macl. 409, 509, 510 ; Hayn v. Culli- 
ford, 3 G. P. Div. 410; 4 0. P. Div. 182; Taylor v.Liverpool, etc., 9 
Q. B. 549. 

The clause in relation to insurance cannot reasonably be con- 
strued as intended to mean any possible insurance, in any possible 
Company, and upon any possible premium. It must be held to refer 
only to insurance whioh might be obtained in the usual course of 
business from the ordinary insurance companies, either in the usual 
form, or in the customary mode of business, on spécial application. 
The évidence on the part of the libelant shows, however, that no in- 
surance against négligent stowage of the propeller could be obtained 
in any ordinary insurance company either in the usual course of busi- 
ness or on spécial application. On oross-examination one of the 
witnesses stated that he had heard of companies or associations in 
England that insured against everything; but he did not know of any 
such company, and he had never seen any such policy. An associa- 
tion Bomewhat like that, with the terms of the mutual obligations of 
its members, appears in the case of Good v. London Steam-ship Owners' 
Mut. Prot. Ass'n, h. E. 6 C. P. 563, The défendants, however, gave 
no further évidence in regard to such associations, and it seems clear 
to me, even if their existence had been proved, that possible insur- 
ance or indemnity in such mutual protective associations, with their 
peculiar terms and conditions, is not to be construed as the insurance 
referred to in this clause of the bill of lading. I see no reaaon, how- 
ever, for not regarding the clause as valid, construed as referring 
only to insurance which might be eflfected in the ordinary course of 
insurance business. Thus construed, it exempts the ship-owners 
from loss which might be thus insured against, and which might be 
recovered of the insurers, if not directly caused by négligence on the 
part of the ship. 

The question in this case is, therefore, practically, a question be- 
tween the ship-owners and the insurers; for if the libelant under this 
restrictive clause did not obtain insurance, it was his own fault, and 
the liability of the ship-owners is not increased. And the question 
is, whether the injury to the goods is to be deemed caused by a péril 
of the seas as the proximate cause of the loss which would be covered 
by an ordinary marine insurance, or whether it was caused directly 
by négligence on the part of the ship. The damage itself is within 
the terms of ordinary marine policies; but if it might hâve been 
avoided by the use of ordinary care and diligence on the part of the 
défendants, then the insurers would not be liable ; for ih such cases 
the négligence, and not the péril of the seas, is deemed the proximate 
cause of the loss. Story, Bail. § 512a,- Clark v. Barnwell, 12 flow. 
280; Gen. Mut. etc.,v.Shcruood, 14 How. 351, 364; Lamb v. Park- 
mari, 1 Sprague, 353; WoodUy v. Mitchell, 11 Q. B. Div. 47; lonides 



THE TITANIA. 105 

V. Universal Marine, etc., 14 C. B. (N. S.) 259; Chartered Mercantile 
Bank v. Netherlands, etc., 9 Q. B. Div. 118, 123; 10 Q. B. Div. 621, 
543. And if the ship is to be deemed unseaworthy at the commence- 
ment of the voyage, by reason of any improper or négligent stowage 
of the propeller, the policy of insurance would not attach; and the 
êhip would also be answerable upon an implied warrantyof seaworth- 
iness. Arn. Ins. 4; 1 Pars, Mar.'Ins. 367,368; Macl. 406, 407. 

Thei-e is no suggestion of any fault on the part of the ship after 
she sailed. If there was any négligence in regard to the spare pro- 
peller, it existed at the time of sailing. Moreover, the shape and 
weight of the propeller were such as manifestly to endanger the safety 
of the ship, if improperly stowed and fasfcened. Hence, the stowage 
of the propeller directly affected the seaworthiness of the ship, and 
the question, therefore, cornes down to this ; was there any such nég- 
ligence or want of care in the stowage and fastening of this spare pro- 
peller as made the ship unseaworthy at the time of sailing on this 
voyage, or such as would prevent a recovery on an ordinary policy of 
insurance for this damage ? The évidence shows, in this case, that 
the propeller broke loose during severe gales, and while the ship was 
rolling in an extraordinary manner. This great rolling was doubt- 
less in part due to her lightness on the voyage, the deck on which the 
propeller was fastened being four feet ninè inches above the. water- 
line. But it is not suggested or claimed that there was any such 
lightness of the vessel as rendered her in any way unseaworthy or 
unfit for the voyage. Wherè a ship becomes unseaworthy during se- 
vere weather, or one part of the cargo does damage to another part, 
it is manifest that neither is the ship, from a considération of the re- 
suit alone, to be pronounced unseaworthy when she sailed, nor is the 
cargo necessarily to be held improperly or insufSciently stowed. The 
question is essentially the same as respects each. If, upon ail the év- 
idence no négligence is recognizable, the damage in either case is set 
down to périls of the sea. 

To détermine the question upon the facts of this case, it will be 
useful to consider — First, what is the test or criterion of seaworthi- 
ness, and the extent of the ship-owner's obligations in that respect ? 
As between the ship-owner and the insurer, the former ia bound to. 
provide against ordinary périls, while the latter undertakes to insure 
against extraordinary ones; "althOugh," as Dueb, J., observes in the 
case of Moses v. Sun Mutual Ins. Co. 1 Duer, 170, "to discriminât© 
between ordinary and extraordinary losses is, in some cases, a matter 
of great nieety and difEculty." By extraordinary is not meant what 
bas never been previously heard of, or vrithin former expérience, bat 
only what is beyond the ordinary, usual, or common. By seaworthi- 
ness is meant "that the ship shall be in a fit state, as to repair, equip- 
ment, crew, and in ail other respects, to encounter the ordinary périls 
of the contemplated voyage." Dixon v. Sadler, 5 Mees. & W. 414; 
2 Arn. Ins. c. 4; 1 Pars. Mar. Ins. 367; Macl. 410; Biccard v. 



106. FEDERAL EEPOKTER. 

Shepherd.'tf Moore, P. C. 471. In the case of Gibsonv. Small, 4 H. 
L. Cas;, ils. Lord Campbell says: "With regard to its (seaworthy) 
literal or primary meaning, I assume it to be now used and under- 
stood fchat the ship is in a condition in ail respects to render it rea- 
sonahly sa/e wiaere it happens to be at the time referred to." In Knill 
V. HoopeTfM Hurl. & N. 277, 284, the court say : "Seaworthy or not, 
is always a question for the jury, and in ail cases the question for 
the jury will be, whether the ship was, at the commencement of the 
voyage, in such a state as to be reasonahly capable of performing it." 
In TarnbuU v. Jansen, 36 Law T. (N. S.) 635, Bbett, L. J., says : "A 
contract of sea insurance is against extraordiuary périls; therefore, 
the implied warranty of seaworthiness is that the vessel will be fit 
to encounter ordinary périls." Substantially the same language is 
employed by Thompson, J., in Barnewell v. Church, 1 Gaines, 234 ; and 
in Dupont, etc., v. Vance, 19 How., Cuktis, J., defines seaworthiness 
of the hull to be competency "to resist ordinary action of the sea." 
In the ease of Adderly v. American Mut. Ins. Go. Taney, 126, it is 
said if the leak -was such "that a prudent and discreet master, of com- 
pétent skill and judgment, would hâve deemed it necessary to ex- 
amine and repair the leak, there could be no recovery; but if he 
might reasonahly hâve supposed that the vessel was seaworthy for 
the voyage in which she was then engaged, uotwithstanding the leak, 
and on that account omitted to examine and repair, such an omission 
would be no bar." In The Reeside, Stohy, J., defines périls of the 
seas to be those "which cannot be guarded against by the ordinary 
exertions of human skill and prudence." 2 Sumn. 567, 571. 

The standard of seaworthiness, moreover, does not remain the 
same with advancing knowledge, expérience, and the changed appli- 
ances of navigation. 3 Kent, *288. In Tidma'rsh v. Washington, etc., 
Ins. Go. 4 Mason, 439, 441, Stoby, J., in charging the jury as to the 
défense of uuseaworthiness, said : 

"The standard of seaworthiness has beeii gradually raised within the last 
thirty yea,i's, fBom a more perfect knowledge of ship-building, a more en- 
lavged expérience of maritime risks, and an increased skill in navigation. In 
tnany ports, sails and other equiprnents would now be deemed essential 
wluch, at an earlier period, were not customary On the same voyages. There 
is also, as the testimony aljundantly shows, a considérable diversity of opin- 
ion, among nautical and commercial men, as to wliat equipments are or are 
not necessary. Many prudent and cautious owners supply their vessels with 
spare sails and a proportionate quantity of spare rigging; others do not do so, 
from a désire to economize or from a différent estimate of the ciiances of iri- 
jury or loss during the same voyage. * * * It would not bea just or safe 
rule in ail cases to take that standard of seaworthiness, exclusively, which 
prevails in the port or eonntry where the insurance is made. * * * It 
seems to me that where a poiicy is underwritten upon a foreign vessel be- 
longing. to a foreign country, the underwriter must be taken to hâve knowl- 
edge of the comraOn usages of trade in such country, as to equipments of 
vessels of that class, for the voyage on which she is destined. Ile must be 
presumed to underwrite upon the groui\d that the vessel shall be seaworthy 
in her equipmeuts, anoording to the gênerai oustoin of the port, or at least of 



THE TITANU. 107 

the country to which she belongs. It would be étrange that an însnrance 
upon a Dutcb, French, or Eussian ship should be void, because slïe wâûted 
sails which, however common in our navigation, never constituted a partof 
the maritime equipinents of those countries. We might aa well require that 
their sails and rigging should be of the same form, size, and dimensions, 
or manufactured of precisely the same materials as ours. In sliort^ thetrue 
point of View, in whieh the présent case is to be examined, is this, was the 
Einily equipped for the voyage in sucli a manner as vessels of her class are 
usually equipped in the province of Nova Scocia and port of Halifax for like 
voyages, so as to be there deemed fully seaworthy for the voyage and suffl- 
eient for ail the usual risljs ? If so, the plaintiff on thia point is entitled to 
a verdict." 

The question of seaworthiness, therefore, as regards the implied 
warranty in favor of the insurer or of the shipper of goods, is to be 
determined with référence to the customs and usages of the port or 
country from which the vessel sails, the eiisting state of knowledge 
and expérience, and the judgment of prudent and oompetent persons 
versed in suoh matters. If judged by this standard, the ship is found 
in ail respects to hâve been reasonably fit for the contemplated voy- 
age, the warranty of seaworthiness is complied with, and no négli- 
gence is legally attributable to the ship or her owners. Where act- 
ual defects, though latent, are established by the proofs, that is, such 
defects as at the time when the vessel sailed would, if known, hâve 
been considered as rendering the vessel unseaworthy for the voyage, 
such as rotten timbers, defective machinery, leaks, etc., such defects, 
though latent, are covered by the implied warranty of seaworthiness, 
and are at the risk of the ship and her owners, and the policy does 
not attach. 3 Arn. Ins. c. 4; 1 Pars. Mar. Ins. 369; Abb. Ship. t340; 
3 Kent, *205; Lee v. Beach, 1 Park, Ins. 468; Québec Marine, etc., v. 
Commercial,etc., L. E. 3 P. C. 234 ; Workv.Leathers, 9T U. 8.379; The 
Vesta, 6 Fed.Bep. 532; Hubert v.Becknagel,13 Fev.Eef. 912. But 
this principle cannot be applied to cases where, ail the circumstances 
being known, the vessel would stUl be deemed by compétent persons, 
and according to existing knowledge and usages, entirely seaworthy, 
and reasonably fit for the voyage, although subséquent expérience 
might recomraend additional précautions. It was long ago held, 
(Amies v.Stevens, 1 Strange, 128,) and is laid down in Abb. Ship. 
t389, as elementary law, that "if a vessel reasonably fit for the voyage 
be lost by a péril of the sea, the merchant cannot charge the owners 
by showing that a stouter ship would hâve outlived the péril." This 
principle applies equally to the stowage of the cargo. 

The same resuit is deinved from a considération of the question 
as a matter of stowage only, not affecting the seaworthiness of the 
ship. For it is well settled that in determining what is proper stow- 
age, the customs and usages of the place of shipment are to be 
considered, and if thèse customs are foUowed, and if none of the 
known and usual précautions for safe stowage are omitted, no breaeh 
of duty, or négligence, càn be iraputed ta the ship; and in case of 



108 FEDERAL REPOSÏER. 

damage under great stress of weather, the injuries will be ascribed ta 
périls of the seas, and held to be chargeable uponthe insurers. In 
3 Kent, *217, it is said: "What is an excusable péril dépends a good 
deal upon usage and the sensé and practice of merchants, and it is a 
question of fact to be settled by the circumstanoes peculiar to the 
case." This point was much disoussed in the case of Lamb v. Park- 
man, 1 Sprague, 343, in wbioh Speague, J., says, (page 350:) 

" The question béf ore the court is whether there was a want of proper skill 
and care in stowing the cargo. Improper stowage is distinctly set up in the 
answer as the first ground of défense. Now, it having been shown that 
this cargo was stowed in aceordance with an established usage, why is not 
that décisive in favor of the libelants? * * * Suppose a question had 
arisen whether this cargo was sufflciently protected by dunnage at the boi- 
tom or sidea, must it not hâve been declded by usage? And if so, why not 
as to the top? It muât be presumed that the parties intended that this 
cargo should be stored throughout in the uaual manner." 

The same point was deoided in Baxter v. Leland, Abb. Adm. 348, 
and in Garao v. Guimaraes, 10 Fed. Eep. 783. And in the case of 
Clark V. Barnwell, 12 How. 283, the court say, in référence to any 
possible négligence in the stowage: "For aught that appears every 
précaution was taken that is usual or customary, or known to ship- 
masters, to avoid the damage in question;" thereby clearly indi- 
cating the rule of diligence' applicable to such cases. 
, î hâve not been referred by counsel to any case closely resembling 
the présent; that of Kopitqff v. Wilson, 1 Q. B. Div, 377, is, however, 
similar, though much strouger in its évidence of négligence than the 
présent. There the defendant's ship had taken aboard large quan- 
tities of armor plates to carry to Gronstadt. They weighed from 
15 to 18 tons each, and were plaoed on the top of à quantity of railway 
iron and then secured there by wooden shores. There was a oonflict 
of testimony as to whether this was or was not a proper mode ôf 
stowing them. The piaintiffs contended that it was improper, and 
made the ship unseaworthy for the voyage. She encountered bad 
weather, roUed heavily, and after she had been out at sea some hours 
one of the armor ylates broke loose and went through the side of the 
ship, which, in conséquence, went down in deep water and was totally 
lost with ail her cargo. On the trial before Blackburn, J., and a 
jury, to recover for the loss of th'e plates, the question was left to the 
jury to détermine whether the vessel, as regards the stowing, was 
reasonably fit to eucounter the ordinary périls that might be expeoted 
at that season from HuU to Gronstadt ; if not, was the loss occa- 
aioned by that unfitness. The jury found on the first question, in the 
négative, and on the second, in the affirmative ; and thereupon a ver- 
dict was direoted for the plaintiff. The .court i» banc, upon a rule 
nisi, held thèse instructions correct. 

In the présent case no fault is fonnd with the place or gênerai 
method of stowing and securing this spare propeller. The gênerai 
plan of securing it was approved by the libelant's witnesses; and 



THE TITANIA. 



109 



the expert upon whose testimony the libelant chiefly relies as to the 
unseaworthineBS of the ship, suggested for her return voyage, after 
this accident, no change in the place or gênerai method of securing 
the spare propeller, but only the addition of a few more rivets, a 
heavier chain, and the fastening of the chocks to the deok. Thèse 
are obviously matters of détail necessarily depending upon the judg- 
ment of persons in charge of such work. 

From the large mass of évidence on this subject put in by the 
claimants, it seems to me impossible to hold that this propeller was 
not stowed and secured in a manner believed and judgèd, by persons 
having the largest expérience and who were most compétent in such 
matters, to be sufficient and safe in ail respects. The ship was 
built, and this propeller was stowed and fastened, under the inspec- 
tion of one of the Lloyd's surveyors, who testified that it was well 
and properly done, and was approved by him as the représentative 
of the underwriters. And even in view of the accident which after- 
wards happened, he still gives it as his opinion that it was "well and 
sufficiently secured, and that something extraordinary must hâve 
happened to account for its breaking loose. What did happen to 
cause its getting loose does not appear. The proof of the good 
quality of the material and work, and of its strength, was ample. 
Nearly a score of witnesses, many of -whom had stowed and fafttened 
from 20 to 200 propellers each, testified that it was done aecording 
to the best and most approved method, and in ail respects in the 
usual manner. As I hâve said above, the vessel had already crossed 
the Atlantic five times fi*om May to October, not only without acci- 
dent, but, aecording to the testimony of the mate, without loosening 
anj' of the propeUer's fastenings. No évidence was given on the 
part of the libelant in any way discrediting the statements of so 
many witnesses, or showing that this propeller was not secured ih 
the usual manner, and with ail the usual précautions adopted in con- 
nection with that mode of stowing; and there is no reàSon to dôubt 
that it was in fact secured in the same manner in which hundreds ôf 
other propellers had theretofore been usually isecured, and always 
hitherto regarded as sufiûcient. No previous accident in any of this 
large number, ' similarly fastened, is known; and this accident oc- 
curred in the course of a heavy gale, aceompanied by extraordinary 
rolling of the ship. I think, therefore, the loss should be fairly attrib- 
uted to périls of the sea, as under somewhat similar ciroumBtan«es 
was held in the case of Barnewell v. Church, 1 Caines, 217, 235, and 
Dupont, etc., v. Vancé, 19 How. 162, 168. 

The libelant's principal objection to the mode of fastening the pro- 
peller was the use of wedges too small in size, and miàde of yello-w 
pine instead of oak. The objection to the use of yellow pine was 
upon the ground of its liability to be "chawed" under the heavy press- 
ure of the chains. But the testimony of the expert on this point 
seems to rest principally upon his expérience in English ship-yards 



110 FEDERAL EEPOBTER. 

some yeara ago, wùen, as he says, only oak wedges were in use. But as 
this vessel was built and the propeller fastened in the customary 
manner in oneof the largest English ship-yards in 1880, little weight 
can be given to the former expérience of this witness in the use of oak 
•wedges only, if yellow pine had corne into subséquent use; and that 
yellow pine wedges were net liable to any such injury from the "chaw- 
ing" of the chains as was supposed — rif yellow pine wedges were in fact 
used — seems to me sufficiently eyident from the fact that during five 
voyages across the Atlantic no perceptible injurions effect was pro- 
duced upon them; for if there had been any such eïïect it would hâve 
been discovered ou the examination previous to the last voyage. . 

I do not consider it by any means certain, however, that the wedges 
used were of yellow pine. This rests upon the testimony of Mackie, 
towards the close of the trial. He also gave the size of thèse wedges, 
lirst as three and one-half inches; subsequently he undertook to make 
a correction of his testimony in regard to the size of the wedges, when 
it became manifest that the wedges must hâve been larger than that, 
in order to support the four chains which ran through each ring. 
His testimony on this point must be considered so grossly erroneous 
that I should be unwilling to rest an important part of the case on 
his évidence. The libelant, at the close of the case, ingeniously 
and naturally seeks to make the most of this testimony, both in re- 
gard to the small size of the wedges and their being of yellow pine. 
No q,ue8tion was made in regard to them in the pleadings, nor ^it the 
time when the bulk of the claimant's évidence was taken upon com- 
mission abroad, from witnesses who best knew what was used, and 
the défendants had no available opportunity for direct proof in re- 
gard to them. Mackie necessarily spoke only from memory in re- 
gard to what he had observed on the previous voyages, as the wedges 
formerly used were not on board when the ship. arrived; and it ia 
possible that in the three years since this accident, the wedges which 
he remembers seeing may haye been those put in at Halifax, where 
the Titania went for repairs, or those put in hère for the voyage after 
the accident. In the subséquent survey, moreover, and in the par- 
ticular directions given by the chief expert for the libelant, no direc- 
tions whatever were given in regard to wedges. This, it seems to- 
me, is strong contemporaneous évidence that the particular kind of 
wedges to be used was not considered material ; if so, some direc- 
tions on that point would naturally hâve been embodied in his reoom- 
mendations, The same observa-tions apply in regard to the wedges 
being single or double. In a matter of détail of this kind arising near 
the close of, the trial, and resting upon the doubtful testimony of a 
single witness, who had no particular call to observe the matter at- 
tentively, I think much greater we\ght should be given, if the matter 
be regarded as in fact very material, to the mass of testimony showing 
that in ail the détails of the work the propeller was secured in the 
usual and customary manner, and in the moJe fuUy approved by 



TSE CHAEliEY A. REED. llî 

compétent judges and by previous expérience. Every conceivaWe- 
motive existed on the part of the ownera to secure tbis, and I think 
the évidence requires me to flnd that this was done, notwithstanding 
the criticisma of tlie libelant's witnesses as to a few détails, made 
after the event. 

I must hold, therefore, that the vessel, in respect to the stowage of 
the propeller, was seaworthy at the time of sailing on this voyage; and 
that the damage to the libelant's goods aroso throtigh the périls of 
the seas in the severe gale and the extraordinary rolling of the ship 
conséquent therefrom; that the damage would be covered by ordi- 
nary marine Insurance, and was, therefore, within the excepted périls 
of the bill of lading, both under the gênerai clause, and also under 
the spécial clause, as a risk whicb might be insured against, covered 
by the ordinary marine policy. 

The libels should therefore be dismissed, with costs. 



The Char^ey a. REED. 

The City of Tboy. 

(Viitriet Court, S. D. New Torh. January 4, 1884.) 

CtoLusioN— Brib Canal— Suctiox— Canal Régulations. 

Where the canal-boats D. C. S. and 0. A. K. were approaching each other 
ia opposite directions on the Erie caaal, the former on the tow-path side and 
■ 1)0111 towcd by horses, and the ateam canal-boat City of T. overtaking the C. 
A. R., attempted to pass her on the Jeft, and as shé did so, the etfect of the 
Bteam-boat, by the swell frorn her bpwa and the suction from her propeller, wag 
to render the C. A. R., for the time being, unraanageable by her helm, and sent 
her bows across to the other side of the canal, so that she struck and injnred 
the D. Ci S., Miir that the steamer was in fault l'or attempting to pass the-C. 
A. R. when the two were so near meeting, instead of ^jraiting until they had 
pa^ised each other, and that the C. A. R. was also in fault for not having stbpped 
lier team of liorses when the City of T. had approaohed within 20 feet of her stern, 
as required by canal régulation No. 49 ; jield fûrther, that a veSsel, which in 
her navigation violâtes any express régulation will be held chargeable with con- 
tributory négligence unlcss she shows clearly that sUch violation could not 
hâve contributed to the collision. 

Actions for Collision. 

J. A. Jlyland, for libelant Peters. 

E. G. Davis, for libelant Linihan and the Charley A. Eeed. 

Beebe é Wilco.v, for the City of Troy. . 

Brown, J. The above libels were filed to recover damages for in- 
juries through a collision on the Erie canal, near Buffalo, east of Bla.ek 
Eock, at about noon of Qctober 1, 1880, between the canal-boats D. 
C. Sùtton and the Charley A. Reed, by whîôh both were damàged. 
The D., C. Sutton had a fuU cargo, was towedby horse, and was go- 



112 FEDERAL EEPOKTER. 

ing westward, and, according to custom, near the tow-path which was 
there on the south side of the canal. The Charley A. Eeed was coming 
eastward, loaded, and towed by borse, and was about in the mid- 
dle of the canal, which was there 85 feet wide. The steam canal- 
boat City of Troy was at the same fcime astern of the Charley A. 
Eeed, and overtaking her from the westward, proceeded to pass her 
by going between her and the heel-path side of the canal. In doing 
so, as it is alleged by the libelants, she rendered the Charley A. Eeed 
iinmanageable, and threw her bowa across the canal, so that the lat- 
ter ran into the Sutton, the bluff of the starboard bow of each canal- 
bo&t striking the other and inflieting some damage on each. The 
owner of the Sutton libeled both the other vessels, alleging that both 
were in f ault ; and the owner of the Charley A. Eeed bas libeled the 
City of Troy, as the one solely in fault. 

It is évident that the collision arose through the steamer's under- 
taking to pass the Eeed when the Eeed and Sutton were approaching 
each other from opposite directions. Wfaether the City of Troy was 
justified in this must dépend partly upon the régulations and partly 
upon the distance the canal-boats were apart when she undertook to 
pass. The évidence shows clearly that a steamer in passing a canal- 
boat renders the latter for the time unmanageable by her tiller; the 
swell from the bows of the steamer first throwing the stem of the 
canal-boat away from the steamer, and afterwards, as the steamer 
approaches the bowsof the canal-boat, havingthe same effect on her 
bows, while at the same time the strong suction from the propeller of 
the steamer, as it approaches and passes the stem of the canal-boat, 
draws the stern powerfully towards the steamer. The latter eo-operat- 
ing with the repelling effect of the swell on the bows of the canal-boat, is 
frequently sufficient to send the latter upon the opposite bank of the 
canal, from which the steamer often assists by a Une in jerking her off . 
Thèse ordinary effects of a steamer's passing a canal-boat in the canal 
were well known to ail the parties to this controversy. It is clearly dan- 
gerons, therefore, for a steamer to attempt to pass a canal-boat when 
there is any other craft in the canal, which may be met, not merely 
before the steamer herself bas passed, but before the canal-boat would 
hâve time to recover her proper position in the canal. Eegulation 
No. 49 of the canal board (Manual of Canal Laws, 349) requires that 
a horse-boat, when approached within 50 feet by another horse-boat 
overtaking it, and proceeding in' the same direction, shall turn from 
the tow-path, and give the rear boat every practical facility for pass- 
ing, and stop whenever neeessary, until the rear boat shall bave 
passed.^ The same régulation requires a horse-boat, when approached 
within 20 feet by a steam-boat moving in the same direction, "to 
turn towards the tow-path, and cause their horse to cease towing un- 
til the steamer bas passed five feet ahead" of it. 

According to the steamer's witnesses she was going about two and 
one-half miles an hour, while the canal-boats were going from one and 



THE OHABLEY A. BBED. 113 

one-half to two miles. They testify that when about a length and a half 
astern of the Reed, two steam-whistles were given as a signal to the 
Eeed that the steamer would pass. Thèse were not heard on the 
Eeed, and the latter's -witneBses testify that when she was about a 
length off they shouted to the City of Troy not to attempt to pass' 
until they had got by the Sutton. Thèse shouts were also unheard. 
The steamer proceeded to pass along the berme bank, there being 
sufBcient room for her to do so without any change in the Eeed's po- 
sition, The City of Troy's witnesses say that when her signais were 
given the horses of the two teams were 200 feet apart, which would 
make the Sutton ^nd the Eeed at that time from 500 to 600 feet 
apart. But when the bows of the City of Troy began to lap the 
stem of the Eeed, as ail the other witnesses testify, the teams of the 
Eeed and the Sutton had passed each other, and the two boats were 
not more than from 100 to 200 feet apart. The captain of the City 
of Troy testifies that he slowed down while passing the Eeed,' the 
object of which was to lessen the effeot of the swell and the suction 
upon the Eeed. When the Eeed and the Sutton were about 200 feet 
apart the Sutton's team was stopped; the Eeed's team was stopped 
when the City of Troy had lapped the stem of the Reed. The 
stopping of the teams, however, afifected the progress of the canal- 
boats only measurably. The Sutton at the time of the collision waa 
nearly stopped by land, as there was a considérable eurrent in the 
canal against her; while the progress of the Eeed, with the same 
eurrent in her favor, could not hâve been much checked during 
the short time that elapsed between her team's stopping and the col- 
lision. 

As the canal-boat was going only some two and one-half miles an 
hour, it was very plain that she could not possibly hâve passed the 
Eeed before the Sutton was reached, even if at the time when her 
signais were given the distance between the Reed and Sutton was 
600 feet, and the distance between the City of Troy and the Sutton 
750 feet. The boats were ail about 100 feet long, and at those rates 
of speed, respectively, the City of Troy would gain but two lengths 
while the Eeed was going three. Even if the former had not slowed 
down while passing, she had three and one-half lengths to gain from 
the time when the signais were given before she would hâve cleared 
the Reed, and the latter would stili bave to recover her proper place 
in the canal in order to avoid running into the Sutton. And as the 
Sutton, moreover, was approaching the Eeed at about the same rate, 
it is clear that at the time the City of Troy's whistles were given the 
Eeed and the Sutton were not far enough apart to enable the City of 
Troy to pass the Eeed before the Sutton would comè abreast, unless 
she was going at a more rapid rate than her witnesses admit; and if 
she was, there was the greater danger through the greater disturbing 
effect upon the Eeed while passing. On the évidence, therefore, I 
cannot entertain any doubt that the attempt to pass the Reed, with 
v.l9,no.2— 8 



114 FEDERAL BEPOETEB. 

its known bazarda, was rasb and foolhardy, and that the City of 
Troy must be beld liable on the gênerai ground of want of due care 
and regard for the safety of the other boats in the canal. 

Eegulation No. 50, although not in terms including this case, does, 
I think, by analogy, condemn, if it does not prohibit, a steamer's ever 
undertaking to pass another beat ^hen a third would corne abreast 
of them before they had suflSeiently eleared. That régulation pro- 
vides that, where two boats "coming in opposite directions, shall ap- 
proach each other in the vicinity of a raft, so that if both should con- 
tinue they would meet by the aide of such raft, the boat going in the 
same direction as the raft shall stop until the other boat shall bave 
passed the raft." The évident purpose is to prevent passing three 
abreast, with ail the dangers incident to that situation. The Eeed in 
this case was in a situation analogous to the raft referred to in this 
régulation. The steamer was going in the same direction, and by 
this régulation would be required to wait untilthe Sutton should hâve 
passed the Eeed. There was nothing in this case to prevent the City 
of Troy from waiting until the Sutton and Eeed had passed each 
other, which they would bave done in less than two minutes after the 
City of Troy had reached the stem of the Eeed. There is no obliga- 
tion in the régulations, and none which reason can suggest, that the 
Sutton should hâve stopped rather than the City of Troy which 
could easily control herown motions; but m;anifestly the contrary. 
When the City of Troy Was seen about to pass the Eeed, the Sutton 
did stop and hugged the tow-path bank, and no fault is attributable 
to ber. 

With regard to the Charley A. Eeed, I am obliged to find a violation 
of régulation 49 on her part, in not stopping when the steam-boat 
approached within 20 feet. Her helmsman first testified that bis 
team did not stop until the City of Troy "was right broad-side of 
us. " He afterwards said that when he first slowed up, the City of 
Troy had lapped about 10 feet. The régulation is explicit in such 
cases that the boat abead shall cease towing when the steamer has 
approached "within 20 feet." Considering the précautions necessary 
for the safety of the boats, there was no reason why the Eeed, even 
indépendant of this régulation, should not bave stopped as soon as 
the Sutton's team was stopped. No régulation required the Sutton 
to stop ; her captain acted as a prudent person should act in viëw of 
probable danger. The Eeed not only did not act with this care and 
prudence, though the danger was sooner visible to her, but she neg- 
îected the express requirement of the régulation as well. It is im- 
possible to say that if she had slowed sooner this could bave had no 
eiïect in avoiding the collision. The blow was a comparatively light 
one; she had a line thrown out to the City of Troy at the time for 
the purpose of keeping her off, and timely slowing by the Eeed, as 
the régulation required, might possibly hâve been sufficient to avoid 
the collision altogether. The Eeed must, therefore, be held liable for 



BED WING MILLS V, MERCANTILE MUT. INS. 00. 116 

3ontributory négligence in this respect. The Pennsylvanîa, 19 Wall. 
125. 

It résulta from this that the owner of the Sutton is entitled to a 
decree against both the Keed and the City of Troy, and that the 
owner of the Charley A. Eeed is entitled to a decree against the City 
of Troy for half bis damages, with costs to the libelant in eac^i case. 



Eed Wing Mills v. Mercantile Mut. Ins. Co. 
(District Court, S. D. New York. January 9, 1884.) 

1. Shippiso— Through Bill of Ladino — Insurance — Conbtbuotion— Btatb 

LiNB. 

The ivords used in Insurance contracts are to be understood according to their 
ordinary scope and meaning, unlcss a more réstricted use is estahlished by gên- 
erai mercantile usage, or expressly brought tp the notice of both parties. 

2. Same^Tbassfkr op Goods. 

Where flour was shipped by the Merchants' Dispatch Transportation Com- 
pany, at Red Wing, Minnesota, for Glasgow, Bcotland, by a through bill of 
lading of that companyand the Btate Line, and the shipper thereupon effected 
insurance with the respondents upon a certiflcate of marine Insurance " from 
New York to Glasgow on board of the State Line," and a portion of the flour, 
on arrivai at New York, was loaded on board the steam-ship Zanzibar, which 
'was not one of the regular steam-sbipg of the State Line, but of wbicli that line 
had taken an assignment of a charter-party for a single trip from New York 
to Glasgow, the charter-party being a contract of aflreightment merejy, and 
the possession and the control of the Zanzibar remaining with her owners, and 
not with the State Line, held, that the Zanzibar did not form, even tetnpora- 
rily, a part of the State Line, and that the insurance did not attach, but that 
the loading on the Zanzibar was a transfer by the State Line of the flour so 
loaded' to another steamer, in accordance with one of the provisions of the 
through bill of Inding. Secus, had the possession and control of the Zansibar, 
though for a single voyage only, been in the State Line 

In Admiralty. 

On the fourteenth of Deeember, 1878, the libelants delivered to the 
Merchants' Dispatch Transportation Company, at Red Wing, Minne- 
sota, 800 barrels of flour, to be transported from Red Wing to Glas- 
gow, Scotland, and received what is known as a through bill of lad- 
ing, entitled "The Merchants' Dispatch Transportation Company and 
the State Line." On the sixteenth of Deeember the libelants took 
out a certiflcate of insurance from the respondents' company, to 
the amount of $2,800, upon the 800 barrels of .flour insured, to be 
shipped "on board of the State Line, at and from New York to Glas- 
gow, Scotland." On the arrivai of the flour at New York, one of the 
regular vessels of the State Line having been totally lost, and there 
béing an accumulation of goods, the agents of the State Line, Aus- 
tin, Baldwin & Co., took to themselves an assignment of a charter- 
party of the steam-ship Zanzibar, from the agent of the New York 
Central Railroad Company, who held a charter of the Zanzibar, for a 



116 FEDEBAL REPORTER. 

return voyage' to Great Britain, and thereupon, on account of the 
State Lme, Austin, Baldwin & Co. loaded her with wheat and peas 
in bulk, and other cargo, including 400 barrais of the flour in ques- 
tion. The Zanzibar shortly after sailed from New York and has 
never been heard from. The claitn of the libelants for thèse 400 
barrelfl of flour was adjusted by the respondents' agents in London 
as a total loss. Payment, however, was resisted, on the ground that 
the policy never attached as respects the Zanzibar, because, as 
alleged, she was not a vassal belonging to the State Line. 

The through bill of lading contained, among others, the foUowing 
clauses : 

"(6) It is further agreed that thesaici Merchants' Dispatch Transportation 
Company hâve liberty to forward the goods or property to port of destination 
by any other steamer or steam-ship cdmpany than that named herein, and 
this contract is executed and accomplished, and tlie liability of the Mer- 
chants' Dispatch Transportation Company, as common carriers thereunder, 
terminâtes on delivery of the goods or property to the steamer or steam-sliip 
company's pier in New York, when the respousibility of the steam-ship 
Company commences, and not before. (7) And it is further agreed that the 
property shall be transported from the port of New York to the port of Glas- 
gow by the said steam-ship coinpany, with liberty to ship by any other steam- 
ship or steam-ship company. " 

The charter-party of the Zanzibar is dated December 18, 1878, and 
provided that the Zanzibar, classed as 100 Ail, in measurement 
2,245 tons, should proceed from Liverpool to New York, and thence 
back, with a cargo of provisions and grain or cotton, at a specified 
rate of freight, to some one safe direct port in the united kingdom of 
Great Britain and Ireland, etc. On the twenty-eighth of December, 
the ship being then in New York, ail righi, title, and interest in the 
charter-party was transferred to the agents of the State Line. By 
the terms of the charter-party the navigation of the ship remained 
entirely under the control and at the expense of her owners; and not 
of the charterers. 

Evidence was given at the trial tothe effect that on vessela belong- 
ing to regular and known lines of tranaportation the rate of Insur- 
ance is less than upon independent vessels. Evidence was also given 
by several agents of insurance companies that they would not con- 
sider a vessel employed upon a single trip, like the Zanzibar, to corne 
within the description of "The State Line" referred to in the eertifi- 
cate of insurance. 

Sidncy Chubb, for llbelant. 

Scudder é Carter, for respondents. 

Brown, J. I do not think that this case should be determined 
with any référence to what the agents of the insurance companies in 
New York might consider as coming within the description of "The 
State Line." The merchants whoship thèse goods by a through bill 
of lading, a thousand miles away in the interior, and who deal with 
the insurance company's agents there, hâve a right to rely upon the 



KED WING MILS V. METOANTILE MUT. INS. 00. 117 

ordinary meaning and scope ot the terms used in the certificate of în- 
surance, unless a more restricted meaning is proved to hâve been 
recognized and established by gênerai mercantile usage, or else ex- 
pressly brought to their notice, neither of which in this case bas been 
proved. ïhis insurance was not upon any particular vessel. It was 
manifestly intended to be as broad as "The State Line," which was 
acting in conjunotion with the Transportation Company in obtaining 
goods on through bills of lading. In my judgment, therefore, "The 
Btate Line" must be held to embrace ail vessels which were navigated 
under the possession, control, and management of the State Line, 
whether the vessels were such as eKisted on the date when the certifi- 
cate of insurance was issued, or were new vessels introduced into that 
line afterwards, on board of which the goods might be shipped; or 
whether the vessels were owned or were merely chartered by that 
line, either before or after the date of the certificate, provided they 
were in its possession and control. Nor can I deem it of any consé- 
quence that the vessel performed but a single voyage, provided that 
upon the voyage on which she sailed she was in the possession and 
under the management and control of the State Line. If so, she 
was during that voyage a part of the State Line, and was one of the 
vessels of the State Line pro hoc vice. If, on the other hand, the 
vessel which carried the flour was not in the possession or under the 
management or control of the State Line, then the case would be 
that of a carriage of the goods bv another steamer to which the State 
Line had transferred them. 

The express conditions of the through bill of lading gave the State 
Line the right "to transfer the goods to anyothersteam-ship or Com- 
pany;" and if the State Line did thus transfer the carriage of 400 
barrels, a part of this consignment, to any other vessel, in accord- 
ance with this provision, it seems plain that the certificate of insur- 
ance would not attach to the latter vessel. The existence of this 
provision in the through bill of lading was notice to the libelants of 
the neoessity of watchfulness on their part in respect to any transfer 
of the goods by the State Line to any other steamer, aùd of the need 
of provision for such a contingency in their insurance. 

After the loss of the Zanzibar was suspected, some correspond- 
ence between the parties to this suit arose on that very point, from 
which it is clear that the libelants were aware of this contingency in 
regard to the insurance, and df the necessity of an assent by the in- 
surance Company in order to hold them as respects any other vessel to 
which the flour or any part of it might hâve been transferred by the 
State Line. 

The terms of the charter of the Zanzibar, of which the agents ot 
the State Line took the transfer, are such as show clearly that the 
State Line did not acquire the possession or bave any control of the 
navigation of the latter vessel. It was a contract of affreightment 
only, and the lassignment of it to the agents of the State Line gave 



il8 FBDEBAL REPORTER, 

them the right only to lade the ship with such and suob goods. The 
possession and the responsibility and control of the navigation of the 
Zanzibar remained solely with her gênerai owners. And it was un- 
der such a charter-party that the 400 barrels in question were laden 
oa board the Zanzibar by the State Line. This, in my judgment, 
was a transfer of so much of this flour to another steamer within the 
terras of the clause of the through bill of lading above quoted. The 
State Line had no possession of the Zanzibar and no control over her. 
They loaded the flour on board of her, as any marchant might hâve 
done, at a specified rate of freight, for which, under the terms of the 
charter-party, the vessel and her owners contracted to deliver thèse 
goods at Glasgow. 

On th«} ground, therefore, that neither the possession nor the con- 
trol of the Zanzibar upon this voyage was in the State Line, I must 
hold that the Zanzibar was not one of the vessels of the State Line, 
even temporarily or pro hoc vice; that the certificate of Insurance, 
therefore, did not attach ; and that the libel must be dismissed, with 
costs. 



The B. B. Saunders. (Two Cases.) 
(District Court, S. D. New York. January 7, 1884.) 

1. Collision— Action pob Damages— Tort. 

An action for damages occasioned by collision is an action of tort founded 
upon negligeuce. 

2. Sàmb—Answeb— Négligence. 

Wliere tlie answer dénies any négligence, the liurden of proof is upon the 
libelant, unless the answer states, or by not denying admits, facts from which 
négligence is legally presumed. 

3. Bamb — Inspectorb' Rules— Fifth Sitoation. 

The supervising inspectors, under the act of Feburuary 28, 1871, (section 4412, 
Rev St.,) hâve authority to frame additional régulations in regard to steamers 
pa^siig each other, not in conflict with the statutory rules. Their rules requir- 
ing steamers in tlie fifth situation to pass ordinarily to the right, but portnitting 
vessels in peculiar situations to pass to the left upon sounding a signal of two 
whistles, is within the scope of their powers, and obligatory on vessels navi- 
gating the harbors. 

4. Same — Answbrinq Signals. 

The requiretrient that the signal, in answer to the exceptional signal of two 
whistles shall be given "promptly," is not complied with except by an immé- 
diate answer, before other maneuvers are taken, where no reason for delay ap- 
pears. 
6. Same— Cabb Stated. 

Where the tugs B. B. 8. and O. were approaching each other upon crossing 
courses in the Kast river in tlie flfth situation, and the O., having the B. B. 8. 
on her starboard hand, sounded a signal of two whistles, and the B. B. 8., with- 
out fli*st replying thereto, immediately signaled to her engineer to stop and 
baek his engines,— a propermaneuverinaccordance with that signa!,— but did 
not immediately answer the two whistles, and very shortly after the O. gave a 
signai of one whistle, which was immediately ans'wered by one whistle, and a 
collLsion ensued, and the case was submited by both sides without other évi- 
dence, Md, that the B. B. 8. was in fault in not answering promptly the O.'» 



THE B. B. BAtJNDBRS. 119 

signal of twn whistles before proceeding to maneuver in accordance with it; 
that it is imposssble to say that the delay and tlie change of signais may not 
hâve contributed to the collision; and that the B. B. S. was therefore liable. 

The above libels were filed to reeover $9,500 damages for injuries 
sustained by the canal-boat H. B. Wilbur and cargfo, which was in 
tow of the B. B. Saunders, through a collision with the steam-tug 
Orient, on the twenty-sixth of September, 1879, in the North river, 
opposite Harrison street. The Saunders, at about 12 m., had left pier 
40, North river, with the Wilbur lashed to her port side to be towed 
to Newark. The day was clear and the tide slack. About 10 min- 
utes after leaving the slip, when the tug was about a third of the 
way across the river and heading down stream, the Orient was seen 
coming ont of the Harrison-street slip. She bore about three or four 
points off the Saunders' port bow. Shortly afterwards, as theanswer 
states, the Orient "blew a signal of two blasts of her steam-whistle to 
signify to the Saunders that the Orient desired to pass across the 
river in front of the Saunders; that the pilot of the latter thereupon 
gave a signal to the engineer of his vessel to slow her engine ; that 
almost instantly, and before said pilot had time to do anything 
further, the Orient blew a signal of one blast of her steam-whistle to 
signify to those on board the Saunders that the Orient intended to 
pass astern of her; that the Saunders immediately replied to said 
second signal with a single blast of her steam-whistle, and signaled 
the engineer of the Saunders to go ahead at full speed, and then put 
her helm to port ; that thèse orders were obeyed, but the Orient con- 
tinued npon her former, course across the river without change until 
she striiok the Wilbur." 

The libelants called one witness, who was on board the Wilbur, who 
testified that he sawthe Orient coming strai^ht out of either Harrison 
or Canal street slip, apparently going across the river ahead of him; 
that he did not notice her again, being occupied, until she was within 
30 or 40 ïeet of . him, and that she came straight upon the Wilbur, 
striking her about amid-ships ; and.that at that time the head of the 
Saunders waa canted towards New York, and that the captain only 
was in the pilot-hbuse. They also read the déposition of the engineer 
of the Orient, showing that at the time of the collision the engines of 
the latter were backing, but he did not know whether her headway 
was stopped or not. Ùpon this évidence and the pleadings the libelr 
ant rested, and the claimants submitted the case upon this testi- 
mony, claiming that no prima facie case had been made out against 
the Saunders requiring any exculpating évidence ontheir part. The 
answer also states that shortly before the collision, and when it was 
seen to be inévitable, the pilot of the Saunders starboarded bis helm 
to ease the blow. 

T. L. Ogden and Chas. M. Da Costa, for insurance company. 

JS. I>. McC7art%, for libelant, Toole. 

Butler, Stillman ce Hubhard.&nà W,- Mynderse, tor claiiûant. 



120 FEDERAL BEPOBTEB. 

Brown, J. The libelants contend that it is a point of great prac- 
tical importance in this case, and in others similar, that they should 
not be compelled to call unfriendly witnesses when not absolutely 
neeessary; and they rested their case upon the pleadings, and the 
slight testimony of two witnesses, as making out a prima facie case 
of négligence in the Saunders, at the same time claiming, also, that 
the Saunders, having taken the tug in tow under a contract to trans- 
port her to Newark, should be legally treated as a bailee, bounà af- 
firmatively to excuse herself for not having fulfiUed her engagement. 
The engagement to tow the tug to Newark is averred in the libels and 
is not denied in the answer. It is unnecessary to inquire how the 
burden of proof would stand if the libels were filed upon such a con- 
tract only. That is not the case hère. They expressedly state that 
they are filed in a cause "of collision." Both tugs were originaliy 
proceeded against; the averments are equally against both; négli- 
gence is charged against both ; and the little évidence given does 
show that the Wilbur was run into by the Orient. Shortly after the 
commencement of the first suit, the Orient was sold for seamen's 
wages, and no surplus remained after satisfying that deeree, and the 
case now proceeds against the Saunders alone. The case as pre- 
sented is not one of contract, but of tort; and the foundation of the 
actions against both vessels is négligence in the tugs. A prima facie 
case of négligence must therefore be made to appear, either from 
the pleadings or from the évidence, or else the libels must te dis- 
missed. 

In the case of The L. P. Dayton, 10 Ben. 430, 433, 18 Blatchf. 
411, the libelant in a somewhat similar case rested without any proof, 
both tugs being there before the court, and each by its own answer 
exeulpating itself , and showing the whole f ault to bave bcen in the 
other. The canal-boat in that case was in tow of the Dayton. 
BiiATcnFORD, J., says: 

"As respects the Dayton, no ^rfmœ/acî'e case of négligence isshowftby her 
answer. Thefact that the collision oecurred while the Centennial was under 
the eontrol and direction of the Dayton, and had neither propelling nor 
steering power of her own, is not prima fade évidence of négligence in the 
Dayton." 

See, also, the English cases there cited, and The Florence P. Hall, 
14 Fed. Eep. 408, 416, 418; The Morning Light, 2 Wall. 5,50, 556. 

I do not think the évidence sufficient to show that there was no 
lookout on duty, or no other pilot than the captain on board. The 
évidence is sufficient, however, to show that the two tugs were ap- 
proaching each other upon crossing courses, so as to be in the fifth 
situation, the Orient having the Saunders on her own starboard 
hand. It was the duty of the Orient, therefore, to keep out of the 
way. She blew two whistles to indicate that she would cross the 
bows of the Saunders. The supervising inspector's rules of 1875 re- 
quired that the Orient, in such a situation, should ordinarily go 



THE B. B. SA0NDERS. 121 

astern of the Saunders, having previously given one blast of the 
steam whistle. Eule 2, and tbe illustrations, pp. 37, 38. The note 
under rule 6, however, states that — 

" The foregoing rules are to be complied with in ail cases except virhen steam- 
ers are navigating in a crowded channel, or in the vieinity of wharves. Under 
such circumstances, steamers raust be run and managed with great caution, 
sounding the whistle as may be necessary to guard against collision or other 
accidents." 

And at page 38, under the illustrations, it is further said : 
"When, for good reason, in rivers, and narrow and difiScult channels, a 
pilot flnds it necessary to deviate f rom the standing rule just stated, he shall 
give early notice of such intention to the pilot of the other steamer by giv- 
ing two blasts of the steam-whistle, and the pilot of the other vessel shall 
answer promptiy with two blasts of his whistle, and both boats shall pass to 
the left." 

In thèse rules I do net peroeive anything beyond the scope of the 
powers conferred upon the supervising inspectors by section 4412 of 
the Eevised Statutes, (Act of February 28, 1871, § 29, 16 St. at 
Large, 450; Act of 1852, § 29, 10 St. at Large, 72.) Under rule 19 
of the statutory rules of navigation, (section 4233,) considered alone, 
when steam-vessels are crossing in the fifth situation, the steam-ves- 
sel which has the other on her starboard hand would doubtless hâve 
an option togo on either side of the other; but that option would exist, 
not by force of any statutory authority, but simply through the absence 
of any limitation as to the mode in which she might perform her duty 
of "keeping out of the way." But after the statutory rules were 
adopted in April, 1864, (13 St. at Large, 58, p. 60, arts. 14, 18,) the 
authority of the supervising inspectors was renewed by the Act of 
1871 (section 4412) to establish additional "régulations to be observed 
by ail steam-vessels in passing each other." Eegula tiens thus estab- 
lished, and not in conflict with the statuts rules, are manifestly 
binding. 

It seems to me entirely compétent for the inspectors, under this 
authority, to establish by rule in what partioular mode vessels meet- 
ing in the fifth or sixth situation shall pass each other. The stat- 
ute makes no provision as to the mode of passing, but requires only 
that the one vessel shall keep out of the way of the other. Where 
there are two ways of doing thïs, equally available, it is not incon- 
sistent with the statute for the supervising inspectors to provide that 
it shall ordinarily be done in one of those ways, and not in the other ; 
and by going to the right, rather than to the left, when there is noth- 
ing to prevent this course. Ail that I understand Benbdiot, J., in 
the case of The Atlas, 4 Ben. 30, to hâve disapproved in the former 
rules, was in so far as the régulation required a port helm in ail cases. 
The vessel required to keep out of the way, he says, "may proceed ac- 
cording as the case requires, and it was a fault in her to port if star- 
boarding afforded the only opportunity of avoiding the disaster." 
T]ic présent régulations of the supervisors, with the provisions above 



122 FKDKRAL EEPORTER. 

quoted, provide fully for thèse contingencies and exceptions.. The 
mère fact that raie 2 of the présent régulations limits the course of 
the vessel bound to keep out of the way, in ordinary circuinstances, 
to one of the two alternatives which shewould otherwise hâve an op- 
tion of choosing, is no objection, as it seems to me, to this rule. 
AU régulations necessarily restrict, and are intended to restrict and 
make deûnite, what was previously undefined and subjeot to the choioe 
of the parties; and the régulation in question seems to me to be 
olearly calculated to promote certainty in navigation, and to avoid 
danger, as well as to permit ail reaaonable and necessary means of 
doing so. In effeet, it re-establishes what was regarded as the rule 
previously existing in ordinary cases. The Johnson, 9 Wall. 146, 153 ; 
The SL John,! Blatchf. 220; The Washington, 3 Blatchf. 276. Rule 
2, requiring vessels meeting obliquely to pass ordinarily to the right, 
subject to the qualifications above quoted, and the requirement of 
signais to be given and answered "promptly," I must regard as strictly 
ûbligatory. Non-observance of thèse requirements has been repeat- 
edly held to be a fault suffioient to charge the offending vessel with 
contributory négligence. The Grand Republic, 16 Fed. Rep. 424, 427 ; 
The Glifton, 14 Fed. Rep. 586; The Wm. H. Beaman, 18 Fed. Rep. 
334. 

The pilot of the Orient, presumably for good reason, desiring to 
pass ahead or to the left, gave two blasts of his steam-whistle, as re- 
quired by the exceptions above quoted. The pilot of the other ves- 
sel heard thèse signais, and was thereupon required to "answer 
promptly," Instead of doing so, the pilot of the Saunders, as appears 
from her answer, proceeded to maneuver his own vessel upon the basia 
of that signal by an order to slow his engine, but without previously 
informing the Orient of that intention or maneuver, but "almost iu- 
stantly,"as the answer continues, "and before hehad time todo any- 
thing further, the Orient blew a signal of one whistle, to which the 
Saunders replied with one, and put her engine fuU speed ahead. The 
collision followed, though, as the answer of the Saunders allèges, 
whoUy through the fault of the Orient. The answer states no rea- 
son, however, why the signal of two whistles was not responded to 
"promptly" before signaling to her engineer to slow her own an- 
gines. The case as submitted, therëfore, présents only the extremely 
narrow, but naked, technical question, whether, where no reason ap- 
pears for a contrary course, an answering signal is required, by the 
inspectors' rules, to be given at once, and before any other maneu- 
vers are taken ; for if the rule doea require that, then the Saunders 
is prima facie in fault, and is called upon either to justify her de- 
parture from the rule, or else to show that such departure in no way 
contributed to the collision. I think this question must be answered 
in the affirmative, and especially so where the signal received is one 
proposing an exceptional course, as in this case. The vessel first 
giving such an exceptional, though lawful, signal, certainly ought to- 



THE QUERINI STAMPHALIA. 123 

be informed immediately whether it is. assented to or not, in order 
that her own navigation may be guided accordingly. She cannot 
rightly be kept in suspense, not knowing ■whether her proposai is 
to be assented to or not, or -which way to shape her course. The ob- 
ject of mutual signais is the mutual understanding of each other's 
course. The rule requires a prompt reply to prevent suspense and 
miscalculation. Toact upon exceptional signais received by ma- 
neuvering accordingly, without previous notice of acceptance, is a 
double wrong, and misleads in two ways : First, by inducing in the 
other vessel the belief of dissent through the delay ; and, second, by a 
change of course or rate of speed without notice. If the rule requiring 
the answer to be given "promptly"is not enforced literally, so as to ex- 
clude ail other maneuvers before ans-wering which are not shown to be 
necessary by the circumstances, the régulation requiring an answer 
to signais can be of little avail, and might rather prove a snare than 
. a help to safe navigation. It is impossible to say that the resuit of 
the delay in this case, however small it may hâve been, was not the 
cause of the Orient's changing her signal of two whistles to that of 
one whistle, and thereby the cause of the collision which followed. 

As the évidence and pleadings, therefore, are sufficient to show 
that the çule of the fifth situation is applicable, and that the Saun- 
ders f ailed to respond promptly to the signal given, as required by the 
inspectors' régulations, and no reason for this failure to respond 
promptly being alleged in connection with this admission in the an- 
swer, or proved, I must hold that there is a prima fade fault shown 
in the Saunders in this respect; and, as it is impossible to say that 
this faalt did not contribute to the collision, the libelant is entitled to 
a decree, with costs. The Pennsylvania, 19 Wall. 125, 137. 



Thb Qoerini Stamphalia, etc. 

The Crédit Lyonnais. 

{District Court, S. T). New Yor' . December 31, 1883.) 

1. Shipping — BiLii OF La-dins — BoNA FiDK Indobsbe — Fkeight Payable — Lump 

SUM — QUANTITT UNKNOWN. 

Where a bill of lading, af Éer reciting receipt of a given quantity, weight, 
etc., contains a further express provision, "quantity, weight, and contents un- 
linown," tlie veasel may show that less tlian the amount stated was received, 
and will not be liable, as for short delivery, even to a bonafide indorsee of a bill 
of lading, if sho delivers ail that she received. 

2. 8amb — Receipt for Mohb thast Actually Pot on" Boahd. 

If the master acknowledges receipt, knowingly, for a greater amount than 
has been put on board, quœre, wliuther the véssel is liable, in an action in rem, 
for more tlian the amount actually laden on board. 



12Ï i'EDERAL RKPORTER. 

3. Same— Chakter-Patitt. 

The bona fide indorsee of a bill of lading is not aflected by the provisions of 
a charter-party, of which he lias no knowledge or notice, so as to be put on in- 
quiry. In such a case he is liable for freight only, according to the provisions 
of the bill of lading. 

i. 8amb — Oase Statbd. 

Whei e the bill of lading provlded, " freight to be paid for 410 tons, £451," 
etc., and "to pay in New Yorlî £300.13.4," hdd, this was notice of a spécifie 
sum to be paid, though the cargo was short of 410 tons, it appearing that the 
kilos actually receipted for amounted to only 400 tons. 

In Admiralty. 

Condert Bros., for libelant. 

Butler, Stillman é Habbard, for elaimant. 

Brown, J. The libelant is the bona fide indorsee of a bill of lad- 
ing given by the master of the Querini Stamphalia for certain iron 
shipped at Odessa on August 5, 1880, to be transported to New York. 
This suit was brought to recover for an alleged short delivery of iron 
to the amount of a little over 38 tons. The cross-libel was filed to 
recover £300 for unpaid freight. The évidence shows satisfactorily 
that ail the iron was delivered which was received on board the ves- 
sel. No question is made but that this would be a good défense as 
igainst the shipper, The libelant, the Crédit Lyonnais, however, 
oontends that as hona fide indorsee of the bill of lading for value, it 
bas a right to rely upon the représentation as to the amount of iron 
yhipped contained in the bill of lading, and a right to hold the vessel 
and her owners for the delivery of this amount. The bill of lading, 
however, expressly states that the "quantity, weight, and contents are 
unknown." In the body it recites the receipt of 406,000 kilos; and 
Uiis is equal to only 400 tons. Only about 362 tons were delivered. 
In the margin of the bill of lading, however, is an entry "freight to 
be paid for 410 tons," etc. Numerous authorities establish the rule 
that a clause in the bill of lading reciting that the weight or quantity 
is unknown qualifies the effect of other statements as to the amount 
or weight, and anthorizes proof to show that a less ainount was in 
fact received on board. Clark v. Bamewell, 12 How. 272; 630 Quar- 
ter Gasks of Sherry , 7 Ben. 506 ; 14 Blatchf. 517; Skepherd v. Naijlor, 
71 Mass. 591; Kelley v. Bowker, 11 Grav, 428; The Nora, 14 Fed. 
Ebp. 429. 

In the cases on this subjeet I find no distinction made in favor of an 
indorsee of a bill of lading. Most of the cases above cited are those 
of such an indorsee. Nor do I perceive any reason why any such 
distinction in his favor should be made; for upon the face of the bill 
of lading itself he bas notice of the qualification which anthorizes the 
master to show that a less amount was actually received. He can- 
not be, therefore, in the légal sensé, a bona fide holder relying upon 
a représentation by the master of a spécifie amount received on board. 
There is no room, therefore, for any such estoppel as exists in favor 
of a bona fide indorsee where no such qualification appears on the 



THE QUBRINI BTAMPHALU. 125 

face of the bill of lading. Bradstreet v. Heran, 2 Blatchf. 116; Meyer 
V. Peck, 28 N. Y. 698; 113 Sticks ofTimber, 8 Ben. 214. 

The case of Jessel v. Bath, L. B. 2 Exch. 267, is almost identical 
with the présent. There the plaintiff was the assignée for full value 
and honafide holder of the bill of lading ofgoods shipped on the de- 
fendant's vessel, and brought his action to recover for a short deliv- 
ery of manganèse. The bill of lading was similar to the présent, 
Btating "weight, contents, and value unknown." The court unani- 
mously held that the action could not be maintained, either at comr. 
mon law or on the statute of 18 & 19 Vict., it appearing that the de- 
fendants delivered ail that they had reeeived, though less than the 
number of kilogrammes stated in the bill of lading. Kelly, C. B., says 
the bill of lading "may be reasonably and fairly read as meaning that 
a quantity of manganèse had been reeeived on board, appearing to 
amount to thirty-three tons, but that the person signing the bill 
would not be liable for any deficiency, inasmuch as he had not in fact 
ascertained, and therefore did not know, the true weight." 

Martin, B., says : 

"The person, therefore, signing the bill of lading by signing for the 
amount, with this qualification, «weight, contents, and value unknown,' 
merely means to say that tlie weight is represented to him to be so much, 
but that he has himself no knowledge of the matter. The insertion of the 
weight in the raargin, and the calculation of freight upon it, does not carry 
the matter any further; he calculâtes the freight, as it Is his duty to do, upon 
the weight as stated to him. The qualification is perfectly reasonable, and I 
do not understand how a statement so qualifled binds any one." 

Bbamwbll, B., says: 

"This document, though apparently contradîctory, means this: A certain 
quantity of manganèse has been brought on board, which is said by the ship- 
per, for the purpose of freight, to amount to so much, but I do not prétend 
or undertake to know whether or not that statement of weight is correct. 
On a bill of lading so made out I think no one could be liable in such an ac- 
tion as the présent." 

Thèse cases seem décisive on this branch of the présent contro- 
versy. 

Again, the indorsee of the bill of lading brings this action in rem 
against the vessel for short delivery. The case of Pollard v. Vinton, 
105 U. S. 7, the case of Hubbersty v. Ward, 8 Exch. 330, and other 
authorities cited in Pollard v. Vinton, seem to me to hold that the 
vessel cannot be bound, whatever may be the liability of the master, 
for goods not put on board. In Maude & P. Law Merch. Shipp. 
343, it is said, generally, that "the master has, as against his owners, 
no authority io sign bills of lading for goods not reeeived on board ; 
nor has he power to, nor does he, charge his owners by signing bills 
of lading for a greater quantity of goods than those on board; and 
ail persons taking bilIs of lading by indorsement, or otherwise, must 
be taken to hâve notice of this." Thé vessel cannot, in this case, be 



126 FEDEBAL BEPOBTEE. 

held lîable for any short delîvery, and the libel of the Crédit Lyon- 
nais must be dismiseed, with costs. 

In the libel for f reight, there is a question how mnch freight can 
be claimed. The vessel was chartered by her owner to H. J. Mor- 
rens, who agreed to load from 410 to 420 tons of old, heavy, wrought, 
scrap-iron, at the rate of 22 shillings per 20 cwt., one-third payable on 
signing bills of lading, and the rest on delivery of the cargo, "the 
owner and master to hâve an absolute lien on the cargo for ail freight, 
dead freight, and demurrage." The iron shipped at Odessa belonged 
to the charterer. It was weighed in the city and thence brought sev- 
eral miles to the dock. After it had arrived there, a considérable 
amount was thrown out, before shipment, as unfit, by the eharterer's 
agent, and other portions were stolen, so that considerably less than 
the lowest amount, namely, 410 tons, stipulated for in the charter, 
was furnished to the vessel. Under the stipulation for dead freight, 
the vessel had a lien on the 368 tons shipped for the full freight, at 
the rate of 22 shillings per 20 cwt., upon the 410 tons agreed to be 
furnished. The bill of lading was made out for 406,000 kilos, eq^ual 
to 400 tons, or 10 tons onlyless than the stipulated amount; but the 
master was confident that there was even less than thia, and he hes- 
itated about signing the bill of lading for that amount, but was as- 
sured by the shipper's agent that any différence would be deducted. 
In the body of the bill of lading, freight was specified "to be paid on 
the said goods, 22 shillings per 1,015 kilos, as per margin," and in 
the margin were the foUowing entries, "freight to be paid for four 
hundred ten tons, £451. Eeceived J — ^6150.6.8. To pay in New 
York, £300.13.4. Signed for shipper. G. "VVeeth." 

There is no référence in the bill of lading to the charter-party ; the 
indorsee of the bill of lading is not, therefore, affected by its provis- 
ions, except in so far as he had notice of it, and so put on inquiry, 
équivalent to notice. He bas a right to rely upon the bill of lading, 
and cannot be held liable for dead freight, which is the subject of the 
présent controversy, beyond what is required by the bill of lading 
itself. Conceding this to the fuUest extent, it is impossible for me 
to read this bill of lading ail together, without holding that the Crédit 
Lyonnais were not only put upon inquiry by the peculiar charàcter of 
the several clauses which this bill of lading contained in regard to 
payment of freight, and the amount, but also that they had express 
notice that the sum of £451, less the one-third already paid, was to 
be paid upon delivery of the cargo, as for 410 tons. The statement 
in the body of the bill of lading that freight was to be paid, 22 
shillings for 1,015 kilos, is qualified by référence to the margin, which 
shows that 410 tons was to be paid for, while the amount stated to 
be received on board, namely, 406,000 kilos, amounted to only 400 
tons. Hère was a very plain ambiguity, even in this part of the bill 
of lading, which was of itself sufficient to put the indorsee on inquiry ; 
and inquiry could not bave failed to disclose the existence of the 



THE JENNIE B. GILKEY. 137 

cbarter-party, and the right of the vessel to receive freight on 410 
tons. But again, the indorsements in the margin of the bill of lading, 
made and signed by the agent of thé shipper, expressly direct "freight 
to be paid for 410 tons," namely, £451, whioh 410 tons amount to, 
at the rate of 22 shillings per ton. Dedueting £150, the margin then 
reads "to pay in New York, £300.13.4." Hère, then, is a spécifie 
adjustment of the amount of freight to be paid in New îork, arrived 
at by computation, with the shipper's direction that that amount is 
to be paid and collected in New York, although it disagrees with the 
presoribed rate and weight, as given iû the body of the bill of lading. 
The object of this indorsement by the shipper's agent was, as seems 
,to me, plainly to give express notice, both to the captain that he 
musfc collect the full amount on dçlivery, not holding the charterer 
upon his charter for any deficiency in freight, and also to notity the 
indorsee of the amount which he must pay. That this amount was 
irrespective of the actual weight of iron receipted for, and, therefore, 
necessarily irrespective of the amount of weight delivered, appears 
upon the very face of the bill of lading. 

By force of the terms of the bill of lading itself, therefore, I must 
hold that the Crédit Lyonnais is liable for the full balance of the 
stipulated freight, and a decree should be entered therefor, with costs. 



The Jennib B. G-ilkby. 
Baker and others v. Loeino. 
{Cirevit Court, D. MassacAusetts. January 22, 1884.) 
Admibai/TT Law — ScHooNER'B LiABiLiTT FOB Necessaby Supplibs — What 

CONSIDERBD THE " HoMB PoET" ÔF A VeSSBL — KeSIDENCK OF OWMBR OR 

Master. 

It is well established fliat the port of registry ia prima facie the home port of 
a vessel, and this presumption must be overcome by clear proof, bef ore any other 
home is taken as the true one ; but it has ot'ten been decided, too, that the place 
of résidence of the owners of a vessel is to be considered the home port, even 
when the registration is in another state, if the facts of ownership and résidence 
were known, or might hâve been known, to the raaterial-man. But as to ma- 
jority and minority ownership, or as between the managing or not managing 
ownership, quœre. 

Samb— Namb dp Port on the Stebn. 

The statute requiring the name of the port of registry to be painted on a ves- 
sel's stem is intended to give to ail persons interested notice of the home of the 
vesssel. 

Bamb— Master— "AcTiNG and MANAGina Owner" — Sailino on Sharbs. 
Where a sehooner was sailed by the master on shares. he to.supply and m^n 
her, and pay a certain part of the net earnings to the owners, Tiéld, that he was 
not the •' acting and managing owner," in the sensé of Rev. St. } 4141, but the 
charterer : and that his sailing on foreign voyages from New York more or less 
often would not mako New York his "usuaî résidence," under that section, if 
his family lired in Massachusetts. 



128 FEDERAL REPORTER. 

4. Same— Insurance— Prkmtom. 

It seema that premiums of insurance are not necessaries for a ship ; and Tidd 
that where the account of a material-man was iasured with the consent of tho 
master and of one part owner, and the account was a charge on the ship but 
not on the owners persoually, there was no privilège for the premiums. 

In Admiralty. 

C. T. Russell and C. T. Russell, Jr., for libelants, appellants. 

Geo. M. Reed, for claimant. 

LowELL, J. The schooner Jennie B. Gilkey was sold in the dis- 
trict court, and certain debts which were admitted to be privileged 
were paid ont of the proceeds. The libel of H. M. Baker & Go., of 
New York, for necessary supplies furnished the master in New York, 
for his last voyage, was rejected, because, according to the évidence 
in that court, New York appeared to be the home port of the schooner. 
A new case is made ?n this court, and bas been very thoroughly 
prepared and argued, both upon the faots and the law. The claimant, 
Mr. Loring, owns the greater part of the vessel, and contesta the lien 
of the libelants. When thèse supplies were furnished, the vessel was 
owned in Massachusetts, Maine, and New Hampshire, exoepting that 
Loud & Co., of New York, owned one sixty-fourth part. The case 
for the libelants is, that the schooner was built and largely owned in 
Boston, and had a permanent register in that port; that "Boston" 
was painted on her stem; that they believed, and had reason to be- 
lieve, that she was a Boston vessel; and that in fact she was so. 
The contention of the claimant is, that New York was the home port 
of the vessel, because Loud & Co., of that city, were her managing 
owners; or that the master was such owner, and usually resided in 
New York; that, therefore, she should hâve been registered there; 
and that admiralty, like equity, will hold that to be done which ought 
to hâve been done. If Loud & Co. were the husbands, oracting and 
managing owners, of the vessel, the registration should hâve been 
changed to New York when they were appointed to that office. Eev. 
St. § 41él. It doea not necessarily foUow that New York became, 
ipso facto, the home port, without change of registration. I hâve 
seen no case which décides that the home port shifts as often as the 
managing owner is changed, without change of papers, or that mate- 
rial-men are bound to discover who is the managing owner of a vessel, 
or what place is his usual place of résidence. One case décides that 
the port of enrollment is the home port, if the managing owner lives 
there, though a majority of the owners live in another state. The 
Indiana, Crabbe, 479. In that case the decree was that the vessel 
changed her home port from a certain day, which was that of her 
new enrollment at the port of the managing owner, and not that of 
the sale to him ; but the time between the conveyance and the enroll- 
ment was trifling, and the point doea not appear to hâve attracted 
attention. 

It bas often been decided that the place of résidence of the owners 



THE JBNNIE B. GILKEY. 129 

is to be considered the home port, even wùen the registration is in 
another state, if the facts of ownership and résidence were known, 
or might hâve been known, to the material-man, (The Golden Gâte, 
Newb. 308; The Albany, é Dill. 439; The E. A. Barnard, 2 Fed. Bep, 
712; The Mary Chilton, 4 Fed. Ebp. 847;) but I hâve seen no case 
which brought up any question between majority and minority owner- 
ship, or between the managing and not managing ownership, in a 
case of this kind. It is equally well established that the port of reg- 
istry is, in a case of this kind, prima facie the home port, to be over 
come by clear proof, before any other home is taken as the true one. 
The Superior, Newb. 176; The Sarah Starr, 1 Sprague, 453; 2 Pars. 
Shipp. & Adm. 326. Mr. Justice Clifford said that the statute re- 
quiring the name of the port of registry to be painted on the stern is 
intended to give to ail persons interested notice of the home of the 
vessel, and this statement is quoted in an opinion in the suprême 
court. The Martha Washington, 1 CliflF. 463, 466; Morgan v. Parham, 
16 Wall. 471, 475. As I find the facts to be in this case, it will not 
be necessary to go beyond thèse décisions. 

Loud & Co. testify that they acted merely as brokers or consignées 
of the vessel, and neither had, nor assumed to hâve, any of the pos- 
era of managing owners; and this is oonfirmed by ail the évidence. 
The schooner's voyages, during some years, were chiefly between 
New York and foreign ports, and, as is so common with New Eng- 
land vessels, the master sailed her on shares. He undoubtedly took 
the responsibility, and gave the orders for ail the voyages and busi- 
ness of the vessel; and Loud & Co. acted precisely as they did for 
ail other vessels which they disbursed. The fact that New York was 
the headquarters of the vessel, as it must be of gênerai freighting 
vessels on this coast, bas no eifect to make it the home port. Hayes 
V. Pacific MoÀl Co. 17 How. 596; Morgan v. Parham, 16 Wall. 471. 

In taking out registration, Mr. Loring, the présent claimant, rep- 
resented himself to be the managing owner. He says that he signed 
the papers because he was told by Capt. Gilkey, his brother-in-law, 
that they were necessary, and knew nothing about their contents, 
which I take to be the fact. Still, Mr. Loring was the largest owner, 
and ail the managing owner that the vessel had, unless the master 
shall be considered so. I agrée with the claimant that it is doubtful 
whether the master can be the ship's husband, or acting and manag- 
ing owner in the sensé of this statute ; but, however this may be, I 
do not find, as a fact, that Capt. Gilkey was such husband, or acting 
and managing owner, nor that he usually resided in New York. He 
managed the voyages of the vessel, as charterer and spécial owner, 
not as ship's husband, in the sensé of the statute; nor did he réside 
in New York. Judge Warb decided that a merchant who passed 
most of his time in New York might be considered as usually resid- 
ing there, though he was domiciled in Maine. The St. Lawrence, 3 
Ware, 211. I hâve my doubts of the soundness of this opinion, but 
v.l9,no.2— 9 



130 FBDEBAL BEPOBTEB. 

do aot now controvert it. Capt. Gilkey was often in New York, but 
it was because his vessel happened to be there at the end of his voy- 
ages. He called himself a résident of Boston, or of Somerville, wbich 
is a suburb of Boston, and his family lived in Somerville, and it is 
notproved that either he, or any one else, eversupposed that he usu- 
ally resided in New York. I cannot think that, if the statute would 
ever admit the master to be the managing owner, it intends to say 
that his nsual résidence shall shift with the shifting business of his 
vessel. Seamen are cousidered to réside, for ail municipal purposes, 
of voting, taxation, distribution of estâtes, etc., where their familles 
live, and they consider themselves to bave their home. Guinr v. 
O'DonneU, 1 Bin. 349, note; Boothhay v. Wiscasset, 3 Greenl. 354; 
Hallet V, Bassett, 100 Mass. 167. While I do not, at the présent 
time, dissent from Judge Waee's opinion that a business man may 
bave a usual résidence apart from bis family, I hold that the master 
of a vessel does not açquire such a résidence by putting into a for- 
eign port more or less often. I hold, therefpre, that the schooner 
was properly registered in Boston, and was a foreign vessel in New 
York, and that the libelants bave a privilège for the supplies fur- 
nished her. 

The only disputed items of the account are the premiums of insur- 
ance. The évidence upon this point is not very fuU. I understand 
that the vessel sailed on her last voyage in 1878, and suffered dam- 
age whiçh caused heavy expenses in a foreign port; that the owners 
contributed funds to redeem her, and afterwards became dissatisfied 
with the conduct of Capt. Gilkey, and sent out another master who 
brought the vessel to Boston in 1881. The libelants, in the mean 
time, having had gênerai authority or instructions from the master 
to that effect, kept themselves insured by annual policies, and the 
principal charges of this kind are for thèse insurances. There is, 
besides, a charge for Insurance on freight in one of the voyages, 
which was authorized by the master. In August, 1880, the claim- 
ant, in answer to a letter from the libelants, which is not in évidence, 
wrote : "Think your bill against schooner Jennie B. Gilkey should be 
covered by a yearly policy, so to get the best rate you can, at the 
same time be able to eancel at any time." The next year he wrote 
a much more cautions letter, in which he referred them to any in- 
structions they may bave had from the master. It is apparent, on 
the face of this second letter, that he was afraid that he had com- 
mitted himself in 1880. I am of opinion that neither the master nor 
the claimant had authority to charge the ship with premiums of In- 
surance paid in New York to secure the libelant's account. 

There is some différence of opinion whefcher Insurance, though duly 
authorized, gives the underwriters a privilège for the premiums. The 
better opinion appears to be that it does not, because Insurance is 
not a necessary supply for the ship itself, but only a prudent security 
for the proprietary interests of her owners. Compare The Collier, 



TBE COLIKA. 131 

3 West. Law M, 521; The John T. Moore, 3 Woods, 61; The Hein- 
rich Bjorn, 8 Prob. Div. 151; The Dolphin, 1 Plippeu, 580, and the 
reporter's note; The Guiding Star, 9 'Eeo.'Rév. 521; The Riga, h. "R. 
3 Adm. & Ecc. 516. 

The strongest argument made by the libelànts is that the premi- 
ums may be regarded like interest, as a charge for delay of payaient. 
In some bottomry bonds such a charge is made by agreement; but 
whether the courts will uphold it, is doubtful. See The Boddingtons, 
2 Hagg. 422; The Robert L. Lane, 1 Lowell, 388; where the question 
was not decided, but only referred to. If it were proved that by a 
gênerai, long-established, and well-known custom, premiums of in- 
surance are to be added to the account by way of considération for 
the forbearance, they might possibly be allowed, on the theory that 
the charge for interest was proportionally diminished, or that the 
arrangement was an entire one, from which no one item was to be 
separated. No such évidence was oflfered. 

It must be remembered that the schooner was sailed on shares 
under a paroi charter, which required the master to supply the ves- 
sel for her voyage, though not to repair her. The schooner is liable 
for necessaries by virtue of a fiction of the admiralty courts, known 
to ail the parties, and admitted in this case. But the insurance did 
not benefit the owners, for they were not personally responsible for 
this debt. The case appears somewhat stronger against the charge 
than if it were made in bottomry, inasmuch as the exigency was less. 
In bottomry, the owner is communicated with, in most cases, and if 
he cannot advance the money, the master must raise it on the best 
terms he can get. Hère the libelànts supposed, though they did not 
inquire, that the master was sailing the vessel on shares, and they 
therefore supposed it to be important for them to insure, because 
they had no resort to the owners. They protected their own interest, 
as a mortgagee might do, and can no more charge the premium 
against the ship than a mortgagee could charge it against the estate 
in the absence of a positive stipulation to that effect. I reject the 
items for premiums of insurance. 

Decree for the libelànts. 



The Colina. 
IDUtriet Court, D. Maryland. Jannary 15, 1884.) 

BHIPMBNT OP CATTUt — XJNFIT DRINKING WàTER — LlABILITY OF VbSSEIi. 

The owners of the steam-ship having contracted to supply ample condensed 
water for a cargo of 340 live cattle from Baltimore to Glasgow, and the court 
flndlng on ail the testlraony that the water fumiahed was unflt for cattle, and 
caused the death of 41 and détérioration in the value of ail the remainder, 
hdd, that the ship was liable to the owner of the cattle for the losses suflered. 



132 FEDERAL BEPOKTEB 

In Artmiralty. 

Sébastian Brown and Henry M. Eogers, for libelant. 

Thomas é Thomas, for reepondent. 

Morris, J. This is a libel against the steam-ship Coliua, of Glas- 
gow, for the value of 41 cattle which died on the voyage from Balti- 
more to Glasgow, and for damages for the détérioration of the re- 
maining 299. The ship sailed from Baltimore, April 18, 1882, with 
340 of libelant's cattle on board, and on May 5th arrived at Glasgow. 
Thé voyage lasted 17 days. On the tweuty-ninth and thirtieth of 
April quite heavy weather was experienced, daring part of which the 
hatches were put down and the ship rolled considerably, but on the 
whole the voyage was a favorable one, and not beyond average dura- 
tion. The libelant allèges that the death and détérioration of his 
cattle was solely in conséquence of the unfifc drinking water supplied 
them by the ship. The contract of shipment provides that an ample 
supply of condensed water is to be supplied by the ship, and the con- 
troversy turns upon the single issue of fact, did the ship supply suit- 
able condensed water for the cattle ? and if not, was that the cause of 
the loss ? The testimony is quite contradictory, but every witness, 
apparently, who could hâve any knowledge of the matter in issue has 
been examined by one side or the other, and the court has been 
greatly aided by the very thorough manner in which the évidence has 
been presented, and by the able arguments of counsel. A careful 
considération of ail the testimony has satisfied me that the libelant 
is entitlèd to recover. I am led to this conclusion by the combined 
weight of very many différent items of proof, some of which I will 
mention. In the first place, there is nothing whatever to indicate 
that the cattle were not good, healthy cattle when shipped. The tes- 
timony in behalf of the libelant shows them to hâve been in fine 
condition, fat, and suitable for exportation, and there is no testimony 
to the contrary. Starting on the voyage in this good condition, it 
is an uncontroverted fact that 41 died from time to time during the 
voyage, and that ail the rest became more or less deteriorated, and 
that ail were still rapidly losing flesh and strength from day to day 
up to the moment of arrivai at Glasgow. This steadj détérioration 
is proved, not only by ail the cattle men who had them in charge, 
but is admitted by Capt. Maxwell, the master of the steam-ship. He 
says : 

"Theywere thin when landed; not nearly in so good condition as when 
put on board. They were ail more or less skiiiny looking, and in as po(jr 
condition as I hâve ever seen cattle after a voyage. ïhey showed no signs 
of the bruises and knocking about of a rough voyage, and had a great crav- 
ing for drink after they got ashore, unlike ordinary shipments on landing." 

The testimony of the cattle men is that at first the cattle refused to 
drink the water, and that, to induce them to drink, they gave it te 
them mixed with bran ; that when they did come to drink it, it did 
not quench thirst, and they craved drink ail the time; that one aftei 



THE COLINA. 



133 



another they became feverish and weak, their eyes bloodshot, their 
hair rough and staring, their bowels loose and very offensive, and 
those which died appeared to become délirions, and died in great 
agony. Thèse various symptoms of distress, as detailed by the cattle 
men who observed them, are said by men of long expérience in hand- 
ling cattle, and by surgeons, to be such as would resuit 'from some 
sort of irritant sait, or other poisonous substance, taken into the 
stomach. There is no proof to show that such symptoms appear in 
any disease to which cattle are subject. Then it is testifled that those 
of the cattle, which, in an almost dying condition, were butchered 
soon after arrivai at Gasgow, appeared différent from ordinary cattle, 
their bladders being greatly distended and dark in color, the urine 
dark, the kidneys fat and soft, and their eyes bloodshot. There are 
numbers of witnesses to ail thèse facts, many of them persons of in- 
dependent positions, long established and well known in Glasgow, 
and it is fair to présume that their testimony, if biased at ail, would 
more likely be eolored by a bias in favor of the owners of the steam- 
ship, who are their fellow-townsmen, than in favor of the libelant, 
an unknown American, residing in Chicago. 

As to the différence in its effects between the ordinary drinking 
waterof the ship and the condensed water supplied the cattle there 
is the testimony with respect to a certain bullock, which, for their 
amusement, some of the engineers made a pet of and supplied with 
drinking water because he refused the other. AU the cattle men tes- 
tify that his condition at the end of the voyage was exceptional, and 
that he alone showed no signs of the sickness which prevailed among 
the others, and was the only beast which went off the ship in as good 
condition as when shipped, and that he was lively and active, while 
the others were duU and sluggish, and difficult to get ashore. 

There is, too, the chemical analysis of the bottle of water taken 
ishore by the head cattle raau, and which he swears was a fair sam- 
ple of the condensed water furnished. If it be trùe, as he swears, 
that the sample was a fair and honest one, then the chemical analysis 
and the testimony of the veterinary surgeon prove that it was unfit 
for cattle, and that its use would produce the symptoms in the cattle 
and the injuries eomplained of. It is true that the fact that the 
bottle of water taken ashore was a fair sample, rests only on the evi- 
dence of the dead cattle man, and, although not in any way im- 
peached the court might hesitate to rest so vital and disputed a fact 
on the testimony of one man; but, as one of a great many corrobora 
ating items of proof, it bas its weight. Certainly it is proof that the 
complaint about the water was not an after-thought, but was présent 
in the minds of thèse cattle men during the voyage, and seriously 
considered by them. When complaint was made to the captain 
during the voyage, the cattle men testify that he admitted on tast- 
ing the water that it was salty. He says that he found it only brack- 



134 TEDEBAL lîEPOBTEB, 

ish or flat, Lut I think his offer to supply the water from the smaller 
condenser ia proof that he did not then think the objection friv- 
olous. The offer of water from the smaller condenser was declined 
by the cattle meu, and, I think, from necessity, as the testimony of 
the ofiScers of the ship shows that the cattle men would hâve been un- 
able to hâve performed the labor of pumping and carrying the water 
from this smali condenser to the caska in which it was to be cooled. 

On behalf of the respondents there are several explanations sug- 
gested to aecount for the unusual, increaaing, and fatal sickness among 
the cattle througbout the voyage; and, Jirst,it isguggested that as the 
cattle were brought from Chicago to Baltimore in cars and were put 
direetly from the cars on board the steam-ship, they may hâve been 
neglected and abused on that journey, and their subséquent ailments 
be attributable to that. But that journey on the railroad was about 
the middle of April, a season when they could not be exposed to any 
extrêmes of weather, and their appearance when shipped indicated 
no abuse or privation of food or water, or failing health from any 
cause; and if they h ad been in jured on the railroad they would hâve 
got better as the effects of it passed off . The contrary was the case : 
the cattle during the voyage grew weaker and more distressed, and 
died more rapidly the longer they were on board. And, indeed, the 
cattle men swear that in their opinion, judging from the increasing 
severity of the sickness, if the voyage had lasted much longer ail would 
hâve died. 

Another explanation offered, and one which is supported by the 
testimony of the officers of the ship, is that the cattle men neglected 
the cattle on the voyage; that they did not feed and water them reg- 
ularly, and allowed them when they got down to lie without assisting 
them to get up, so that the lying down prevented their passing urine, 
and that this eaused the disorders of the bladder and kidneys, which 
resulted in their death. While I do not question that such rétention 
of the urine would bave eaused most of the symptoms of distress and 
disease they exhibited, I am dispoeed to think that this complaint 
about the neglect of the cattle men ia an after-thought. The captain 
could not hâve thought it to be a fact at the end of the voyage, for 
he gave a written eertificate to the head cattle man that he "had been 
most attentive to his duties in tending the cattle during the whole 
passage, and that he was a most compétent person for taking charge 
of cattle on board ship." The cattle men generally were men of ex- 
périence in their duties, and had made fréquent Atlantic voyages in 
charge of cattle. Another answer to this theory, that it was neglect 
that brought on the injuries, is that ail the cattle suffered in the same 
way, although not to the same extent, — some resisting the disorder 
better than others, but ail being appreciably affected. It can hardly 
be supposed that on a favorable voyage, with little rough weather, ail 
the cattle got down. They are placed in narrow stalla to keep them 



THE COLINA. 135 

on their feet, and do net get down unless they are siek and too weak 
to stand, or are thjown down by the violent rolling of the ship and 
the breaking of the stalls. 

It is said by the ship's officers that the two men who had charge of 
the cattle on the forward part of the upper deck were the only ones 
properly attentive to their duties, and that this explains why only one 
beast died in that part of the ship. Thèse two men themselves, how- 
ever, testify that ail the cattle men helped each other to get cattle 
up when they were down, and that they gave only the same atten- 
tion to their cattle that others did, and that they tasted the water re- 
peatedly and found it very salty; that their cattle refused to drink it 
at first . as did the others ; and, while as many cattle did not die in that 
part of the ship, they dicj ail show more or less of the same symptôme, 
the same; distress and thirst, and were deteriorated in the same way. 

Another suggestion is that, by the carelessness of the cattle meny the 
casks containing the condensed water were left uneovered, and spray 
and sea-water was washed into them in the rolling of the ship. As 
there was a large number of thèse casks in différent parts of the ship, 
and many of them below in the between-decks, this theory is too im- 
probable to be aecepted, and if true must hâve happened, more or less, 
on every voyage,. and certainly should hâve been remedied by the ship- 
owners by differently placing the casks. 

A considération of the testimony, as a whole, bas brought me to 
the conclusion that the water was unsuitable for cattle, and that it 
caused thedeaths and détérioration by which the libelant bas suffeired 
the losses complained of ; and I adhère to this finding of f act, nothwith- 
standing the positive testimony that the same apparatus on other 
voyages, both before and after the one in question, supplied condensed 
water for quite as large cargoes of cattle which were carried by the 
same steam-ship without their suffering any injury. The fact that the 
water was bad, and that the cattle suffered from it on this voyage, is, 
in my judgment, established, and the libelant is not to lose his rem- 
edy because he cannot explain why it was bad. 

As to the amount of the pecuniary loss which resulted from the dé- 
térioration of the cattle there is decided conflict of testimony. I 
bave not found this question free from difficulty, and hâve been 
obliged to deal with it in some spirit of compromise. The cattle 
were not injured ail to the same estent, and they would seem to hâve 
improved in appearance and strength after landing, and before the 
sale, and the sale seems to hâve been well managed in the inter- 
est of the libelant. Comparing the sales with the reported market 
priées, the cattle which survived seem to bave sold better than was 
expected, and the loss to hâve been not so great as was estimated by 
those who judged by the appearance of the cattle as they came off the 
ship. I allow 30 shillings a head for the détérioration on ail that 
were sold. For those that died I allow the average price brought by 
those that were sold. I bave not allowed the additional sum for dé- 



136 FEDEBAL EEPOBTEB. 

terioration on those that died, because in ail probability thèse were 
not the best beasts; and as to thèse, ail further risks of the voyage, 
and ail further expense of attending their keep and sale, ended 
with their death, and was saved the libelant. 
The amount of the decree will therefore be : 

STATEMENT, 

Cattle consigned to A. & T. ïieiman, and stowed be- 

tween-decks, total . - - . . V79 

For 25 died, at £24 each, .... £600 

For dépréciation on 154 arrived, at 30 shillings each, - 231 

£831 

Cattle consigned to Young & McQuade, carried on main 

deck, total, - - -, - - 161 

For 16 died, £23 each, . - - - - £368 

Less one carcass, ..... 16 

352 

For dépréciation on 145 arrived, at 30 shillings each, - 217.10 



£569.10 



Tiernaa's, ..-..- 831 

Young & McQuade, ------ 569.10 

£1,400.10 
At entrent rate of exchange, say $4.89. 
Œo interest.) 



HouGB V. WooDEUFF and others. 
{District Court, 8. D. New York. January 8, 1884.) 

1. 8HIPPING — Demukeagb — Rbasonable Time— Cargo of Salt. 

A meichant who buys cargo on board ship after her arrivai, laking no trans- 
fer of the bill of lading or charter-party, and having no knowledge of either, is 
bound only to the useof reasonable diligunce in discharging inconformity with 
the custom of the port. 

2. Same— Change of Berth. 

WUere a vessel lias obtained a Tierth at the place assigned by the merchant, 
and is ready to discharge, and she proceeds at his request to another berth, 
where a further delay arises, the vessel is entitled to be paid for tlie expense 
and delay caused by such remuval, in the absence of any spécial usage of the 
port or trade authorizing such a change at the vessel 's expense. 

3. Same — Custom. 

By usage in the salt trade, rainy weatlier is deducted, salt not being remova- 
ble without damage during such weather. 

The bark Elliseff, of which the libelant was master, brought in 
ballast about 257 tons of salt from Lisbon to New York, where she 
arrived on the twenty-sixth of December, 1880. The salt came un- 
der a charter-party and bill of lading consigned to Hagemeyer & 



HOUGE V. WOODEUFF, 137 

Brun, wùo entered it in tbe custom-house and sold it on board to the 
respondents. The latter had no knowledge of the charter-party or 
the bill of lading, and took no transfer of either. The vessel went to 
Merehants' stores on the twenty-seventh of December, obtained a 
berth on the 28th, and gave respondents notice that the ship would 
be ready to deliver on the 29th. On the afternoon of the 28th the 
respondents, by letter, requested the captain to go to Wallabout to 
discharge. The captain at once called on the respondents, and, as 
he testified, refused to go unless the respondents would guaranty that 
there was sufficient water, which he said the respondents did guar- 
anty. Mr. Wod^ruff, with whom this interview was held, denied 
this statement, and testified that he stated only that larger vessels 
than this had discharged at the Wallabout ; that he did not think 
there would be any difficulty about it, and that the captain must ex- 
amine and satisfy himself ; that the captain went out and afterwards 
came back and said he would go, whereupon the vessel was taken,on 
the 29th, to the Wallabout by a tug hired by respondents for that ptir- 
pose. On arrivai there, the harbor-master stated that no berth could 
be had until the Slst, owing to the présence of other vessels. On the 
31st a berth was in readiness, but in the mean time, owing to ex- 
trême and unusual cold, the vessel got frozen in, so that she was un- 
able to reaoh her berth until the fourth of January. Thô discharge 
was commenced on that dayand finished on the 12th. One thousand 
bushels per day, equaling 33 tons, was proved to be a reasonable 
and customary rate of receiving and discharging a cargo of sait, and 
that rainy days were not counted in the sait trade, as that article can- 
not be discharged in bad weather with safety. The charter-party 
provided for a discharge at the rate of 50 tons per day; the bill of 
lading contained no provision on the subject. 

Butler, Stillman d Hubbard, for libelant. 

Beebe, Wileox é Hobbs, for respondents. 

Brown, J. As the respondents bought this sait from the consignée, 
who had entered it as his own, and took no transfer of the charter- 
party or bill of lading, and had no knowledge of either, they are not 
responsible upon any of the provisions of those instruments. 1 Maude 
& P. Mère. Shipp. 393. The whole évidence, however, makeâ it clear 
that upon the purchase of the sait, which was by verbal contract 
only, they were to receive it from the ship. Their obligations with 
respect to the discharge are, therefore, only to use reasonable dili- 
gence, in conformity with the customs of the port, as in cases of the 
absence of any bill of lading, or of any stipulation in the bill of lad- 
ing on the subject of discharge. Coombs v. Nolan, 7 Ben. 301 ; The 
Hyperion'a Cargo, 2 Low. 93; Cross v. Beard, 26 N. Y. 85; Henley 
V. Brooklyn Ice Co. 14 Blatchf. 522; Kane v. Penney, 5 Ped. Eep. 
830. 

Considering the sworn testimony of the captain shortly after the 
transaction, and the contents of his letter of the 28th, I cannot doubt 



138 



FEDERAL BSPOBÏEB. 



that the vessel went to Mercliaiits' stores by direction of tbe i^spond- 
ents. On the 27tb she obtained a berth and was ready tu discharge 
there on the 29th, after a delay of two days. She then went to thi 
Wallabont, at the request of the respondents, where there was a furtbei 
unavoidable delay of two days ; but after those two days she oould bave 
obtained a berth had the ice not further delayed her. It cannot be as- 
sumed, in the absence of positive proof to tbe oontrary, that the direc- 
tions of the harbor-master were improper, or that there was any other 
vacant berth which she could bave procured earlier. Where a vessel 
has once obtained a berth at a dock, directed by the merohani, and is 
in readiness to discharge there, the merchant certainly has no right, 
in the absence of a particular usage, or of some stipulation author- 
izing it, to aend the vessel to another berth, except at bis own ex- 
pense for the removal, and for any delay which properly arises from 
it. Where an established usage has been proved giving the mer- 
chant a right to, at least, one change of berth in the discharge of the 
cargo, he is not liable for the delay caused by the removal, because 
that is a part of the vessel's obligation. Smith v. 60,000 Feet of Yel- 
low Fine Lumber, 2 Fed. Eep. 396, 400; Moody v, 500,000 Laths, Id. 
607. No sueh usage waa proved in this case; nor, in fact, was any 
part of the cargo discharged at Merchants' stores. 

The Wallabout basin was a proper and customary place for the 
discharge of sait. The respondents might properly hâve directed the 
vessel there in the first instance, but as the vessel had already iost 
two days' time in obtaining a berth at Merchants* stores under the 
respondents' direction, and the same time would bave been necessa- 
rily Iost at the Wallabout in obtaining a berth by the 31st, the respond- 
ents must be charged with the two days' double delay caused through 
their own change of direction. The master, it is true, seems to bave 
aequieseed in this removal, because the charter-party required him to 
make one removal in delivery, if desired; and he does not appear to 
hâve understood that the respondents were not bound by the terms of 
the charter-party. The respondents cannot elaim the benefit of this 
provision, unless they are willing tb be bound to discbarge at the rate 
of 50 tons per day, which they do not accept. The charter-^party 
must therefore be whoUy disregarded. As the first. of January was 
a holiday, and the 2d was Sunday, there was but one additional day's 
Iost time, namely, the 3d, before the vessel had got along-side her 
beitb and commenced her discharge. This delay was caused by tbe 
ice, and not by the fact that the vessel grounded in the mud at low 
■water. The ice arose from extrême and unnsual cold,— a fortuitous 
accident of the éléments, for which the owner of the cargo is not re- 
sponsible, in the absence, of spécifie lay days, and when liable only 
under the , obligation to use reasonable diligence in receiving cargo. 
Cross Y. Beard, 26 N. Y. 85; Coombs v. Nolan, supra; The Mary 
E. Taber, 1 Ben. 105; The Glover, 1 Brown, Adm. 166; Fulton v. 
Blake, 5 Biss. 371 ; Kané v. Penney, supra. After the 4th, one daj, the 



THE ALPS. 139 

9th, being Sunday, there was no delay in dischargîng beyond the cus- 
tomary rate, which would allow eight working days. 

Decree for the libelants for two days' demurrage, at the customary 
rate of 10 cents per ton par day, amounting to $84. 



The Alps. 
( Biitrict Court, S. D. New Yvrh. December 28, 1883.) 

1. Seambn's Waqes — Fines — Disciplihh, 

in modem maritime law fines upon seamen being a forfeiture of wages, pro 
tanto, ci!.nnot be imposed by the mastor by way of discipline and punishment 
for miner offenses, exoept as regulated and provided by statute. 

2. Bame— Mbrchants' Bhippikg Act of Qreat BEirAm. 

The merchants' shipping act of Great Britain provides that the shipping ar- 
ticles may contain sucb stipulations for fines as liiay be approved by the board 
of trade. When such approved stipulations are a part of the shipping articles 
signed by the seamen, fines may, be imposed accordingly by the master. 

3. Bamk — Shipping Articles. 

Such fines, ho wever, cannot be allowed in diminution of a seaman's wages 
except upon proof by the shipping articles that such stipulations were agreed 
upon. 

4. Same — SuMMATr Procekdinos. 

In sunnaary actions for seamen's wages, the authonty of the statute îs suffl- 
ciently j leaded by a gênerai référence to thé law of Great Britain. The court 
is authonzod by section 4597 of the Revised Statutes toinfliot partial forfeiture 
of wages for disobediénce of lawf ul commanda. 
S Bame— Case Btatbd. 

Where a British seaman on a British vessel was fined by the master two dol- 
lars for foui language and quarrelsome conduct, attd af terwards, on being re- 
quired to listen to the reading of the entry on the log, imposing the fine, he 
ref used to attend or listen, and was flned two dollars, being two days' pay for 
the last offense, Tield that, in the absence of proof' of the shipping articles, 
the flrst fine could not be allowed or deductcd from his wages, but that the 
last fine should be allowed by the court for the seaman's disobediénce of a law- 
ful command, under section 4.597 of the Kevised Statutes, as well as section 243 
of the merchants' shipping act. 

In Admiralty. 

Hyland é Zahriskie, for libelant. 

McDaniel é Souther, for claimants. 

Bbown, J. This is an action for fieaman's wages upon an English 
ship, for 45 days, from June 12 to July 28, 1883. When the libelant 
was discharged at this port his wages for that period unpaid amoanted 
to $29.50, oif which $25.50 has been tendered and paid into the 
registry of the court. The différence of $4 is a déduction by way of 
fines imposed by the master upon the seaman for alleged misconduot 
durin^ the voyage ; the first, a fine of $2 for. violent and abusive lan- 
guage io th& steward in the hearing of the maôter, upon some con- 
troversy in référence to the food, about 12 days bêfore the arrivai of 
the vessel in this port. An entry was made in the log aa foUowa: 



140 FEDEBAL REPORTES. 

"Thomas McCormick came affc and made use of profane and abusive lan- 
guage to the chief steward, also trying to provoke a qnarrel by calling the 
steward 'a bald-headed son of a bitch;' for each of the above offenses he 
(Thomas McCormick) is liable to a fine of one dollar, which will be enforced." 

The seaman was not notified of the fine or of the entry in the log 
until the day preeeding the arrivai of the vessel at this port. He 
was called to hear the entry read, when he refused to attend or to 
listen to it ; and for this offense the f urther fine of two dollars was 
imposed by the master, and entered in the log. The libelant claims 
that the déduction of thèse fines cannot be allowed in thia action, 
because the right to impose them is not properly pleaded nor prop- 
erly proved. The answer, after alleging the profane, abusive, and 
quarrelsome conduct of the libelant, states that he was "thereupon 
tined by the master, as was his power and duty to do, pursuant to 
said shipping articles and to the laws of said kingdom." The previous 
part of the answer avers that the ship was a British ship, and that the 
libelant signed shipping articles, to which référence was made as a 
part of the answer. No copy of the shipping articles is annexed to 
the anstver, nor hâve they been put in évidence. So far as the right 
to impose a fine rests upon a foreign statute, it must undoubtedly be 
properly pleaded, (Holmes v. Broughton, 10 Wend. 75 ; Andrews v. 
Herriot, 4 Cow. 525; Ennis v. Smith, 14 How. 400, 426; Harris v. 
White, 81 N. Y. 544;) but under the brief and somewhat informai 
pleadings allowed by the rules of this court in small causes (rules 
164-175) this objection should not be entertained where, as in this 
case, the opposite party cannot possibly hâve been misled. 

The authority to impose thèse fines rests upon section 149, sub. 7, 
of the marchants' shipping act of Great Britain, which permits the 
shipping articles to provide stipulations in regard to fines and other 
lawful punishments idt misconduct, provided thèse stipulations hâve 
been sanctioned by the board of trade. Such stipulations thus sanc- 
tioned, and fprming a part of the shipping articles, become obliga- 
tory upon the seamen shipping under them; bqt as thèse shipping 
articles hâve not been introduced in évidence, no authority for the 
déductions hère claimed is proved. They cannot, without proof, be 
presumed to bave existed in a giy«n case, because the allowance of 
such stipulations is merely permissive, and is never obligatory. 
They may. bave formed a, part of the articles, or they may not. 

Aside from thèse stipulations, the first fine of $2 cannot be sus- 
tained. Fines, are prci -tanto a forfeiture of wages, and under the 
modem maritiiïie law, aside from statue, a forfeiture of wages is im- 
posed only for miscondpot of an aggravated character. By article 
12 of the Laws of Oleron and article 24 of the Laws of Wisby, if one 
seaman "give another the lie, a fine of four deniers" was imposed; 
a,nd if a inariner "impudently contradicted the. master and gave him 
:the lie, a finie pf eight deniers." ' Thèse small disciplinary fines hâve 
beconae obsolète with the çurrency in which they were imposed,; and 



THE QUAKER OITT. 141 

under our statutes, (section 4596,) which is, in gênerai, similar to sec- 
tion 243 of the British merchants' shipping act, no f orfeiture of wages 
is incurred by quarrelsomeness or the use of foui language. The gên- 
erai maritime law empowers the master by means of other punish- 
ments to enforce proper discipline in thèse respects. Both of thèse 
statutes, however, authorize a forfeiture of wages for disobedience of 
lawful commands, in the discrétion of the court, not exceeding two 
days' pay by the British statute, nor more than four days' pay by 
the statute of this counti-y. 

As the shipping articles hâve not been introduced in évidence, the 
first fine cannot be sustained ; but the requirement on the twenty- 
sixth of July that the libelant attend to hear the entry in the log 
read, was a lawful command. Any such fines are by law required 
to be read to the seamen before entering the next port. Mer. Ship. 
Act, §§ 256, 244; Eev. St. § 4597. The libelant willfuUy disobeyed 
this last lawful co.mmand, for which the further penalty of two dol- 
lars was imposed, equal to two days' pay, I bave very little doubt 
that the shipping articles, if produced, would show that the fines 
were lawfully imposed. The articles had been returned to England, 
and conld not be obtained without some expense. Irrespective of 
them, the court may enforce, and in this case, I think, should enforce; 
a forfeiture of two days' pay for the libelant'â disobedience to thé 
lawful command to attend and hear the entry in the log read. 

It is said that this court ought not to enforce fines imposed by an 
English statute not proved; but as the suit is within the discrétion 
of this court to entertain, ail parties being foreign, the libelant can- 
not complain that the court takes judicial notice of a statute of wMcli 
there is no doubt. 

Decree for the libelant for $27,50, and his disbursemeiits, without 
other costs. 



The Quaker City. . 
. (District Court, S. D. New York. Jànuary 10^ 1884," 

Collision— ÔLD BoATs—REPATRa— ExcKssnrB' Demahbs—Costb. 

Where a steam-tug maneuvering in a slip rubs against or strikea à barge 
moored at the wharf with unjuatiflable force, she is chargeable with the dam- 
ages properly attributable to her négligent act, though the boat struck was old 
and weak. In dealing with old boats, however, the repairs made shotlld be 
closely sorutinized to prevent imposition^ and nothing aU.owed for repairs. be- 
yond those made neceasary by the blpw. In this case iDut one-thirii of the 
claim allowed, and costs dënied. ,. 

In Admiralty, , 

J.A.Hyland, ÎQi\ihe\&Tû.ï, 

' Owért té Graj/, for claim'ants. 



142 FEDERAL BBPOETER. 

Bbown, J. On May 18, 1881, the canal-boat Shady Eun lay in 
the slip on the north side of the pier at the foot of Fortieth street, 
North river, discharging a cargo of ice. Her bows lay to the west- 
ward and about 12 feet inside of the end of the pier. At about 7 
o'clock of that morning the steam-tug Quaker City, with the canal- 
boat L. D. Cummings lashed upon her starboard sida and projecting 
somewhat ahead of the tug, came down the river and into the slip 
for the purpose of landing her along-side and outside of the boat next 
to the Shady Eun, Owing to the shallow water, as stated by her 
pilot, the tug and tow not obeying the helm as usual, the stem of the 
Cummings struck the starboard bow of the Shady Eun and inflioted 
some damage, on account of whioh this libel was filed. The claim- 
ants do not deny that the Cummings hit the Shady Eun, but allège 
that it was but a slight blow or rub, such as is usual in the landing 
of canal-boats, and that the damage to the Shady Eun arose from her 
rotten and unseaworthy condition. 

Without going into the détails of the évidence, there are varions 
circumstances wbich satisfy me that the blow was one of more vio- 
lence than the claimants' witnesses acknowledge, and that the claim- 
ants must be held responsible for the damages properly arising there- 
from. The ohief difficulty arises from the contradictory évidence in 
regard to the Sound or rotten condition of the Shady Eun. Complaint 
being made the same day by the owner of the canal-boat at the claim- 
ants' office, their agent and the captain of the Quaker City, on the after- 
noon of thesame day.examined the bows of the Shady Eun to ascertain 
the damage. ï'hey testify that no damage was visible on the outside; 
that on gi'ing down the hatch, inside the boat, with the owner, one 
beam was found loose or broken, and that the captain, on taking 
hold of it wij;h the hand, pulled off a handful of rotten wood and 
showed it to the owner. The latter dénies that any such circum- 
stance oocurred, or that the timbers were at ail unsound or rotten. 
The évidence on the part of the canal-boat, including her owner and 
captain, and the carpenter who did the repairs ou her, shows that 
from six to seven planks on her starboard bow were broken, each 
about six feet long, and one plauk 16 feet long. The carpenter states 
that the repairs which he did were to renew the plank speciôed; to 
put in one new timber, about six or eight feet in length ; to brace two 
adjoiningones; and he testified that the timber taken outwas sound. 
He also put in a newbumper along the bow, and one new plank upon 
the deck. 

Upon the évidence it is very difiScult to form any satisfactory con- 
clusion with regard to the seaworthy condition of the Shady Eun. 
The fact that she brought a considérable cargo of ice, and without 
much leakage, if the testimony is to be bèlieved, bas considérable 
force. I can only repeat what was said in the récent case of The 
Syracuse, 18 Ped. Eep. 828, that the claimants should hâve procured 
further évidence than that of interested witnesses, if they intended 



GBONN V. WOODBUFF. 143 

to rely for tbeir défense upon the fact that the Shady Eunwas so rot- 
ten and unseaworthy as not to be entitled to any recovery. Having, 
as I muBt find, hit her bows with a blow more violent than justifiable 
in the ordinary handling of boats, whether new or old, I think she 
must be held answerable for the damage properly attributable to that 
négligent act, though the boat were old or weak. The Granité State, 
3 Wall. 310. The Syracuse, supra. 

The évidence satisfies me, however, that the repairs in this case 
went far beyond the natural offeets of such a blow, even if the canal- 
boat was not staunoh enough to resist ordinary handling. The bill 
of items of the repairs done shows nearly 800 feet of tituber and 
plank used in thèse repairs, with numerous other items in proportion. 
This, as appears from the examination of the carpentér, was suffi- 
cient for many times the amount neoessary to replace and repair the 
broken and injured parts. 

The captain and agent of the claimants testify that on visiting the 
ship-yard while the repairs were going on they fotind the whole bow 
of the canal-boat taken out and in course of repâir. This is denied 
by the carpentér and the ownèr of the boat. I am entirely satisfied 
from the évidence that the repairs were very greatly in excess of the 
injury done. The évidence is perhaps insufficient to deteriùiné ex- ' 
actly the proper amount. I shall allow provisionally what I gather 
from the présent évidence, viz. : one-third of the bill of repairs ; one- 
third of the demurrage claimed ; one-half the amount claimed for 
the broken liiies;. and the whole of the bills for towage and dockàge, 
as they would hâve been necessary in any eVent. Thesô together 
amount, with interest to date, to $72.20, for which a decree may be 
entered, but without oosts, as the amount of repairs claimed is évi- 
dence of bad faith on the part of the libelant; except, however, that 
if either party is dissatisfied with my estimate of the damages, they 
may take an order of référence to compute the amount, ait the risk of 
paying the expansés of the référence if not successful in obtaining a 
more favorable resuit. 



Gkonn V. WooDEUFF and others. 
(District Court, S. D. New York. January 8, 1884.) 

1. Smppmo— AssTOmiBNT of Bill of Lading— Charter-Party. ■ 

A merchant purchasing goods on board a vessel af ter arrivai; and taking 
an assignraent of the bill of lading, is bound by its terms, but not by the terms 
of the charter-party, anyfurther than it is adopted by tho bill of lading. 

2. SAirfE — Bill op Lading — Demurragb — Rbasonablk Time. 

Where the bill of lading provides no stipulated days for the discharge, the 
merchant is bound only to reasonable diligence, according to the custom of 
the port. 



144 FEDERAL BKFOItTËB. 

3. Same— Rbmovax of Vessbl from Berth. 

Where a merchant procures the removal of a vessel from a berth already se- 
cured to another, for hia own beneflt, pays the cost of removal, and procures the 
cargo to be disoharged ■within the average time allowed by the custom of the 
port from the day when she was flrst ready to discharge, hdd, no demurrage 
can be claimed. 

In Admiralty, 

Butler^ Stillman é Huhbard, for libelant. 

Beebe, Wïlcox é Hobbs, for respondents. 

Brown, J. The bark Spess arrived at New York on January 8, 
1881, with 265 tons of sait in ballast from Lisbon, upon a bill of 
lading wHich was transferred to the respondents. They entered the 
sait at the custom-house, paid the freight, and directed the vessel to 
Atlantic docks, where the vessel arrived on January 4th, and gave 
notice of her readiness to discharge on the 5th. On that day, at the 
respondents' request, the master consented to go to Twenty-third 
Btreet and unload, where she was taken at the respondents' expense, 
and arrived at about 4 p. m. One wagon load was delivered on the 
evening of the 6th, and the discharge was ended early on the 15th, 
and might hâve been completed had the ship desired on the evening 
of the 14th. The bill of lading proyided no stipulated days for the 
discharge, and it referred to the charter-party only as regards the 
payment of freight. The provisions of the charty-party, therefore, 
as respects the rate of delivery, did not bind the respondents. 
112 Sticks of Timber, 8 Ben. 214; Kerford v. Mondel, 5 Hurl. & N. 
Exch. 931. It was proved that 1,000 bushels, or 33 tons, per day was 
a reasonable and customary rate of disoharge. This woald leave eight 
working days for the discharge of this cargo. ■ 

Although the vessel had given notice that she would be ready to 
discharge on the 5th, I think the évidence shows that she did not get 
a permit, or tubs, and did not get ready, so that she could actually 
commence the discharge, before the 6th ; and it does not appear that 
the removal from Atlantic docks to Twenty-third street, which oecu- 
pied only some three hours, made any différence in her want of prép- 
aration. But even if the vessel had been ready upon the 5th, de- 
ducting Sunday, and the rainy days in the mean time, only eight 
working days were consnmed in the discharge. Although on several 
of the working days considerably more than 33 tons per day were in 
fact discharged, I think the merchant cannot be held liable, in the 
absence of any stipulated lay days or agreement for dispatch, pro- 
vided he gets the whole cargo disoharged within the time which cus- 
tom allows. As this time was not exceeded, the libel must be dis- 
missed, with costs. 



BOYD V. GILL jli5 

BoYD V. GiLL and others. 
Cutter v. Whittibb and others. 

NoTT V. Clews and others. 

Peekins V. Dennis and others. 

(Gvreuit Court, S. D. Nev> ïork. December 14, 1883.) 

1 RbmovaIj of Cause — Contkovbbbt Whoixt bbtwebn Citizens op JDipfee- 
BNT States. , 

A controversy is not the same thing as a cause of action ; and a suit against 
two persoQs jointly does not, merely because it might hâve been brought 
against either separately, involve a controversy whoUy between the plaintiil 
and one of them, within the meaning of the act authorizing the removal of a 
suit to the fédéral courts where there is a controversy wholly between citizens 
of différent states, 

2. Samk — Sbpaeatb Contkovbiîsies. 

;Wben, however, the separate causes of action could both be pursued against 
différent défendants, and settled indépendant]^ of each oiher, the suit, even 
though it contain a joint cause of action also, mvolves separate controversies 
and falls within the term of the act. 

8. Samb— Bill against Fraudcient Tkustebs. 

A cause of action against several trustées for the fraudulent misappropria- 
tion of trust funds, being ex delicto and involvlng, therefûre, no right of contri- 
bution between the défendants, majr in equity as well as at law be pursued 
either jointly or severally ; and a bill in equity founded upon such a claim, and 
demanding a joint and several accounting by the trustées, involves such a sep- 
arate controversy with each défendant that if one of the défendants is a non- 
resident the cause is removable. 

4. Same — FaiNG of Pétition befobe Tbial. 

The trial of a cause upon demurrer is a trial within Ihe meaning of the aot 
requiring a, pétition for the removal of a cause to be iiled before the trial 
thereof. 

On Motion to Eemand. 

H. F. AveriU and Geo. F. Betts, for plaintiff in each case. 

Sewell, Pierce & Sheldon, for défendant Plumb. 

Sherman d Sterling, for défendant Whittier. 

Ahbot Bros., for défendant Clews. 

Arnoux, Ritch & Woodford, for défendant Dewing. 

Before Wallaoe and Brown, JJ. 

Wallace, J. Thèse cases and the Case of Langdon v. Fogg,* de- 
cided by Judge Bbown, but in which he ordered a reargument, hâve 
been heard together, the questions being substantially identical, upon 
motions to remand the suits to the state ieourt. In each case the 
action was brought in the state court by a résident plaintiff against 
a non-resident défendant and several résident défendants, and was 
removed to this court upon the pétition of the non-resident défend- 
us Fed.Rbp. 5. 
v.l9,No.3— 10 



146 FEDBBAI» BBPOBTBB. 

ant. The right to a removal îs challenged upon the ground that 
there is not a controversy in the suit which is whoUy between the 
plaintiff and the non-resident défendant, and whieh can be fully de- 
termined between them, within the meaning of the second section of 
the removal act of March 3, 1875. 

There are some immaterial différences in the allégations of the bills 
of complaint in the several cases, but the bill in each may be fairly 
treated as one brought by a stockholder in a mining corporation to en- 
force a cause of action which exists in f avor of the corporation against 
the directors for a fraudaient appropriation of its assets, but which the 
corporation does not assert because it is oontroUed by the unfaithful 
directors, and the directors and corporation are consequently joined 
as défendants. The relief sought is that the individual défendants 
account jointly and severally concerning the profits they hâve madô 
by the misappropriation of the corporate property, and be adjudged 
to pay the amount found due to the corporation into court for the 
benefit of the stockholders. This being the cause of action disclosed 
by the bill, it will be treated as one upon which a separate action 
could be maintained as between the plaintiff and the non-resident 
défendant. The rule may now be deemed established that where a 
eestui gwc trust seeks in equity to charge trustées with personal liability 
for their fraudulent acts, he may join ail who hâve participated, or 
proceed against one or more of them severally at bis .élection. The 
right of action in such a case arises ea; delicto, and in equity as well 
as at law the tort may be treated as several as well as joint. Heath 
V. Erie Ry. Go. 8 Blatchf. 347 ; May v. Selhy, 1 Younge & G. Ch. 235 ; 
Franco v. Franco, 3 Ves. 75; Wilkinson v. Parry, 4 Euss. 272; Atty. 
Gen. V, Wilson, 4 Lond. Jur. 1174. A proceeding against trustées 
for a fraudulent breach of trust is an exception to the rule that in a 
suit against trustées ail of tliem must be made parties. Cunningham 
V. Peli, 5 Paige, 607. The reason is obvions. A trustée may insist 
that his co-trustees be joined, when he is siied for a breach of duty 
in which the other trustées are involvéd, because he is entitled to con- 
tribution. In cases of breach of trust not involving actual fraud, con- 
tribution may be enforced by trustées, as between themselves, — Hill, 
Trust. 814 and notes, (4th Amer. Ed.;) — but no right of contribution 
exists where the demand sought to be enforced is ex delicto. Ellis v. 
Peck, 2 Johns. Ch. 131; Miller v. Fenton, 11 Paige, 18. The cause 
of action disclosed by the bill is therefore one capable of being de- 
termined as between the plaintiff and the non-resident défendant 
without the présence of the other défendants. The plaintiff, at his 
élection, can dismiss- his bill as against ail the other défendants at any 
stage of the action and proceed against the non-resident défendant 
alone, and obtain against him the complète relief to which he would 
be entitled if the' Other défendants were joined. 

The question, then, is whether the act of 1875 gives the right of 
removal whenever there is a cause of action in the suit between a 



BOTD V, GILL. 147 

résident party on the one side and a non-resident party on the other, 
upon which a several recovery may be had against the latter, or 
whether the right exista only when tbere is a separate and distinct 
controversy to which ail the substantial parties on one side are rési- 
dents, and ail those upon the other are non-residents. The language 
of the act déclares that when in "any suit * * * between citi- 
zens of différent states * * * there shall be a controversy which 
is wholly between citizens of différent states, and which can be fuUy 
determined as between them, then either one or more of the plaintiffs 
or défendants * * * may remove," etc. T.îro diverse views of 
the meaning of this language are indicated by the adjudications of the 
fédéral courts. In Peterson v. Chajwmn, 13 Blatohf. 395, the action 
was one of trover, in which the plaintiff was a citizen of New York, 
and the défendants were one a citizen of New York, and one a citizen 
of Connecticut. It was held that, although the cause of action was 
such that the suit could be maintained by the plaintiff against either 
défendant alone, it was not a removable suit, because ail the parties 
to the controversy were not résidents upon the one side and non-resi- 
dents upon the other; and that the plaintiff having elected toproceed 
against ail jointly, the case disclosed but a single controversy, and 
that was one which could be fuUy determined only between ail the 
parties to the suit. This décision was approved and followed by 
other judges in this circuit in Sawyer v. Switzerland Ins. Co. .14- 
Blatchf. 451, and Van Brunt v. Corbin, Id. 496. The latter case was 
ail action of ejectment, and one, therefore, in which the plaintiff at 
his élection might hâve proceeded against the défendants severaUy 
instead of jointly. The moré récent casé of Tuedt v. Carson, 13 Ped. 
Bep. 353, in the eighth circuit, is to the same effect. That was an 
action brought by the plaintiff against several défendants for a tort. 
Some of the défendants were résidents of the same state with the 
plaintiff, and others were résidents of a différent staté^. It was held 
not to be such a separable controversy that the non-resident de- 
fendants could remove the case, although the plaintiff çould at bis 
élection hâve proceeded against them alone. On the other hand, 
Clark V. Chicago, etc., Ry. Co. 11 Ped. Rep. 355; Kerling v. Cotz- 
hamen, IÇ Ped. Rep. 705; People éz rel. v. Illinois Cent. R. Co. là. 
881, are authorities for the broad proposition that whenever the suit 
is founded on a cause of action upon which, at the élection of the 
plaintiff, the défendants might hâve been sued severally, a non-resi- 
dent can remove the suit, although the other défendants with whom 
he is sued jointly are résidents of the same state as the plaintiff. 

It is urged that, since the décisions in this circuit referred to, the 
suprême court bas considered the construction of the second clause of 
the second section of the ajct of Marcb 3, 1875, and in the light of its 
décision in Barney v. Latham, 103 U. S. 205, the former judgments of 
this court should be reconsidered, and it should now be decided that 
whenever in a suit between a résident plaintiff Hnd several défendants» 



148 FEDERAL EEPOBTER. 

one only of whoro is a non-resident, there is a cause of action which 
might be fuUy determined as between the plaintiff and the non-resi- 
dent défendant, if the other défendants were not parties, the suit is 
removable. Bamey v. Latham does not seem to sanction any such 
contention. Some misapprehension of that décision may hâve arisen 
by overlooking the distinction between a separable cause of action and 
a separate or separable controversy. The cases in the seventh and 
eighth circuits seem to interpret that décision as holding that whenever 
a separate action could hâve been maintained by the plaintiÉf uponthe 
cause of action sued upou against one of the several défendants, as to 
such défendant there is a separate or separable controversy in the 
suit. In Barney v. Latham there were two separate and distinct con- 
troversies, as to one of which the requisite diversity of citizenship ex- 
isted between ail the parties to it, plaintiff and défendant, to author- 
ize a removal of the suit. Speaking of this controversy the court, 
through Mr. Justice Haklan, say that "such a controversy does not 
cease to be one wholly between the plaintiffs and the défendants be- 
cause the former, for their own convenience, choose to embody in their 
complaint a distinct controversy between themselves and other de- 
fendants." That décision was commented on in the subséquent case 
of Hyde v. Ruble, 104 U. S. 407, and its resuit is tersely and clearly 
stated by the chief justice as follows: 

"To entitle a party to removal under this clause there must exist in the 
bUit a separate and distinct cause of action, in respect to which ail the neces- 
sary parties on one side are citizens of différent states from those on the other. 
Thus, in Barney v. Latham, two separate and distinct controversies were 
directly involved, — one, as to the lands held by the Winona & St. Peter Land 
Company, in respect to which the land company was the only necessary party 
on one side, and the plaintiff on the other; and the second, as to the moneys 
coUected from the sales of lands before the land company was formed, as to 
which only the natural persons uamed as défendants were the necessary party 
on tiie one side and the plaintiffs on the other; one was a controversy abput 
the laiid, and the other about tlie money. 8eparaté suits, each distinct in 
itself , mîght havé been properly brought on thèse two separate causes bf ac 
tion, and cotnplete relief afforded in such suit as to the particnlar controversy 
involved. In that about the land the land company would hâve been the 
only necessary défendant, and in that about the money the natural persons 
need only hâve bçen brought in. In that about the land there could not hâve 
been a removal because the parties on hoth sldes would haVe been citizens of 
the same stâte; while in that about the money there could have been, as the 
plaintiffs would ail be citizens of one state, while the défendants would ail be 
citizens ofanother." 

It does not ûeoessarily follow that a controversy is wholly between 
a plaintiff and each one of several défendants, andcan be fully de- 
termined as between them, merely becâuse such a controversy might 
have been presented if the plaintiff had elected to présent it in that 
form. The cbntroversy in a suit is the one which is actualiy pre- 
sented, not the one that might have bèen. It is not wholly between 
the plaintiff and one of the défendants because it might have been if 
the plaintiff had so élected. Nor can a controversy be fully deter- 



BOÎD V. aiLL. 149 

mined between a plaintiff and one of the défendants when iu theform 
and substance which it bas assumed the plaintiff insists, and lias a 
right to insist, tbat so far as he is concerned it shall be determined 
as to both of the défendants. The controversy is the claim in form 
and substance as it is presented for détermination ; and if a joint re- 
covery against several défendants is claimed upon a cause of action 
which justifies a joint recovery, the controversy is between the plain- 
tiff and aH the défendants against whom the claim is asserted. The 
opinions of Judge Johnson in Peterson v. Chapman, and of Judge 
Tkeat in Tuedt v. Carson, are replète with satisf actory reasons agafnst 
sueh a construction of the removal act as is insisted upon. There 
seem to be no controlling reasons, therefore, for receding from the for- 
mer décisions in this circuit. 

It remains to consider whether, under the bill hère, which seeks a 
decree that the défendants account severally ooncerning the gains and 
profits reeeived by each through the fraudulent acts oomplained of, 
there is not a controversy which is separate as between the plaintiff 
and each défendant, and which can be fuUy determined as between 
them. If the défendant has eleoted to pursue each défendant sepai- 
rately, and the cause of action disclosed by the bill justifies him in do- 
ing so, it would seem that the suit présents a separate controversy as 
to that défendant notwithstanding there is also a controversy between 
the plaintiff and ail the défendants jointly. If this separate contro- 
versy can be fully determined between the plaintiff and défendant 
without the présence of the other défendants, the language of the re- 
moval act is satisfied. That it can be thus determined has already 
been shown, because the other trustées are not necessary parties to a 
suit brought against one for a fraudulent breaoh of trust. There is, 
therefore, a distinct controversy hère between the plaintiff and each 
défendant. Some of the transactions assailed by the bill are not joint 
transactions on the part of the défendants. Ail of the défendants 
may not be liable to the same estent. The prayer as to this branch 
of the bill is against each défendant for a several accounting, and 
that is only necessary. upon the theory. that some of them are liable 
for a différent amount than others. 

It is no answer to the suggestion that the suit présents a separate 
and distinct controversy as between the plaintiff and each défendant, 
to assert that the decree obtained will be a single decree as toall the 
défendants. The same thing may be said of every decree in suits in 
equity, and could hâve been sài,d iii Barney v. Latham., For thèse 
reasons the actions wereprpperly removed. 

In the case of Nott v. Clews the additional point i s made that the 
pétition for removal wag ijiot filied by the rembvipg défendant before 
the trial of the cause. As to four of the défendants separate demur- 
rers were interposed and brought to a hearing. The demurrers were 
overruled, but leave was given to the défendants to answer upon pay- 
ment of costs of the demurrers within 20 days. As the removal waa 



150 FEDBBAL IUS7PBTEB. 

at the instance of one of the défendants who demurred, it is not ma- 
torial that when the demurrer was heard service of procesa had not 
been made on some others of the parties nanaed as défendants. If 
the cause was not in a condition to be heard on demurrer, the objec- 
tion should hâve been taken in time. As it is, after the removing 
défendant has elected to treat the action as severed, he cannot now 
be heard to say that the hearing and décision upon the demurrer is 
to go for nothing. The real question is whether the hearing and dé- 
cision of a cause upon a demurrer is a trial of the cause within the 
meaningof theremoval act. This précise question has been decided 
adversely to the défendant by Judge Benedict in Langdon v. Fish, and 
it was there held that such a hearing was a trial which precluded the 
subséquent removal of the suit. It was not held in that case that the 
hearing upon a spécial demurrer, or one whieh is addressed to merely 
formai objections in a bill or complaint, is a trial within the contem- 
plation of the act. • But if a défendant chooses to hâve the action tried 
upoù the pleadings, instead of upon issues of fact, it is his right to do 
so, and the décision is a final détermination of the action, unless in 
the discrétion of the court a new pleading is permitted. By the Code 
of this state, and a large number of other states, the hearing of a de- 
murrer is the trial of an issue of law. The term "trial" has thus ac- 
quired a more enlarged signification than it possessed when Blackstone 
defined it as "the examination of the matter of fact in issue in a cause." 
BabUttv. Clark, 103 U. S. 606, is authority for the proposition that the 
trial of a cause upon an issue of law is a trial which will preclude the 
removal of the suit afterwards. In this case, therefore, the motion to 
xemand is granted ; in the other cases it is denied. 

Bbown, J., concurs in the resalts. 



Seabf V. Whiteside and others.' 

Whitebidb V. Shabp.* 

(Circuit Court, E. D. Tennessee, 8. D. July 4, 1883.) 

REMovAii OF Cause — Citizknship— Sepabate Controvbhst. 

Wbere the question to be decided tu a cause is the right of a plaintiff to 
carry passengers into a certain park owned by one of the défendants, the other 
défendants being the lessees of such park, a separate controversy exists between 
the lessor and plaintifl, and if they are oitizens of diSefent states the cause is 
removable under the second section of the act of 1870. 

In Equity 

>SeeS. C.,poit, 156. 



BHâBP V. WHITEBIDB. 151 

Lewis Shepherd, Key dt Richmond, and Clarke d Snodgrass, for Sharp. 

W. H. Dewitt and Wheeler é Marshall, for Whiteside. 

Key, J. The first question to be determined in thia case is whether 
the cause h as been removed from the chancery court of the state to 
the circuit court of the United States. If it has been removed there 
other questions must be considered. If not, no order can be made or 
step taken except to remit the case to the chancery court of the state. 
It is conceded in argument that if this cause has been removed, or if 
it be removable, it is done, or it mustbe done, under the second clause 
of the second section of the act of 1876, declaring and defininp; the 
jurisdiction of the circuit courts of the United States. There are 
other défendants to the original cause, and ail the défendants, except 
Florence Whiteside, are résidents and citizens of the same state as 
L. J. Sharp, the complainant in the original bill. It is not denied 
that Florence Whiteside is a citizen of a différent state from that of 
complainant, or that the allégations of her pétition for removal, or 
the bond executed under it, are not in due form, or that the amount 
in controversy is sufficient, or the application made in time. The 
contention on this point is whether the controversy is so entirely be- : 
tween Mr. Sharp and Miss Whiteside thut it can be fully determined 
between them. There is no question, for the fact is admitted, that 
Miss Whiteside has title to the turnpike road and the park described 
in the pleadings. The'controversyis whether Sharp as a livery- 
stable man, has the right to carry hia passengers into the park to 
which Miss Whiteside has title. In other words, is her title, in its 
character, servient to a right on the part of Sharp to enter the in- 
clbsed park against her cousent. The alleged right of the otheç de- 
fe^dant8 is that they hâve leased the turnpike road and park from 
Miss Whiteside for the term of five years. 

It appears to me that whether her co-defendantB hâve made such 
a çontract of lease or not, has no effect upon thè point in coutro- 
trbversy betweçn the chief parties. Anything in regard to the lease 
is subordinate to and dépendent upon the décision of the controversy 
between thè principal parties. If Sharp bas the right to enter the 
park, as he insista, he has it against the lessor and lessees alike. If 
he has no such right against the lessor he has not against the lessees. 
There is no complication of the question in controversy between the 
parties by the joînder of the défendants, and the case between the 
principals can as well be tried without Miss Whiteside'? co-defend- 
ants as with them. Their controversy is perfectly, conipietply.and 
distinctly Réparable from that with the other défendants, in my 
opinion, jt must foUow, therefore, that the case is remoV9.blp,, and 
thàt it was removed under the pétition of Miss Whiteside. This be- 
ing so, the last bill, or amended bill, filed by Sharp wa,s without any 
authority, force, or effect, and. ail the orders of the chancery court, 
or ehaneèllor under it, are void. That portion of the record in the 
chancery court is out of the case. It appears, also, that upon tho 



152 f SDEBAL BEPOBTE&. 

same day upon which the pétition for removal was presented, the 
petitioner took some other steps in the cause, upon whicb no action 
was taken by the court. I think thèse steps must also be taken as 
having no force or efifect, as either having been taken after tlie péti- 
tion was presented, or completely annulled and superseded by it. 

In this state of the pleadings, and the record sent from the state 
court, I think it best to give the parties opportunity to perfect and 
présent, if they désire to do so, the case it appears to hâve been their 
purpose to hâve done, and in doing so I do net mean that they must 
présent the same or even similar papers or pleadings, but such as 
they may deem proper and necessary to présent the issues raised, or 
to be raised. Uutil opportunity bas been given to do this I think it 
best to postpone action on the application of Miss Whiteside for an 
injunction, so that we may hâve the whole case in a tangible and per- 
fect shape. The exception made by Sharp's solicitors in this state 
of the case will be without force. 

Leave is now given to Miss Whiteside to file the bill, she having 
given bond and surety for costs, but no new process and copy need 
issue. 



Walsbb and others ». Mbmphis, C. & N. W. Ey. Co.' 

(Circuit Court, E. D. Missouri. December 3, 1883.) 

1. JOINDEK OF PabTIBS — COKPOBATIONS. 

A corporation is a necessary pariy défendant to a bill to enforce a judgment 
against it by compelling contribution from its stockholdei-s. 

2. JuRisDicTioN— Suit not WHoiiLY. bktwbbn Citizbus of Differeitt States, i 

Where there are two or more plaintiiîs and two or more défendants, and one 
of tlie p)ainti£Cs and one of the défendants are citizens of the same state, this 
court bas no jurisdiction. 

3. Same — Removal of Causes fbom State to Fédérai, Cohbt — Amkndmbnts. 

Where a case has been brought hère from a state court, no change of plead- 
ings or in the relationship of the parties, by amendraents in this court, can 
give jurisdiction not disclosed by original proceedings in the state court. 

Motion to remand, on the ground that this court has not jurisdic- 
tion of this case and the same was illegally removed because the 
claims and demands of the oomplainants are several and not joint, 
and some of them do not exceed the sum of $500, and because the 
controversy herein is not wholly between citizens of différent states, 
but on the contrary is between citizens of the same state, and the 
controversy cannot be severed. For a report of the opinion of the 
court on a former motion to remand, and a f uller statement of facts, 
sep 6 Fed. Eep. 797. 

Joseph Shippen and John P. Ellis, for motion. 

Broadhead, Slayback é Hauessler, for petitioning défendant. 

' Reported by Benj. F. Rex, Esq., of the St. Louis bar. 



DINSMOBE 274 CENTBAL B. CO. 153 

Tbeat, J. a similar motion was made and decided by this court 
at the March term, 1881, by Judge MoCearï, in wliich I conourred. 
Since then many proceedings and orders hâve been improvidently 
had. It may be that in the récent case of Barney v. Latham, 103 D. 
S. 205, it was supposed that opposite views to those expressed by 
this court had been established. It seems, however, that after the 
order of this court to remand the case to the state court and an ap- 
peal allowed, a subséquent order was entered vacating said appeal, 
and leaving open the motion to remand for further considération. 
The right to vacate said appeal is questionable. Since that order, 
an amended bill, a demurrer, and a new motion to remand hâve been 
filed. The right to remove the cause was dépendent solely upon the 
condition thereof at the time of the motion made in the state court; 
and no change of pleading or relationship of the parties, by amend- 
ments thereafter in this court, could give jurisdictionnot disclosed by 
the original proceedings in the state court. The opinion by Judge 
MoCeary, in 1881, has been fuUy confirmed by the many décisions of 
the United States suprême court since rendered. It is obvions, there- 
fore, that the cause must be remanded, and ail orders made since the 
original order to remand vacated. 

An order will be entered accordingly. 



DiNSMOBB V, Centbaii R. Co. and others. 

(Uirctiit Court, D. New Jeney. Deoember 7, 1883.) 

1. J0KISDICTION — COLLUSIVB SuiT — O B JBCTION , HOW RAISED. 

The objection to a bill that it was not exhibited in good faith, but collu- 
sively and in the intereats of others, goes to the jurisdiction of the court, and 
shouid be raiaed by plea iu abatement and not by answer. 

2. Same— Evidence not Bufficient to Establish Coli/Ttsion. 

The fact that some of the officiais of a rival corporation, with which com- 
plainant has close business relations, hâve been friendly and active in giving 
him aid in the préparation of his case, will not suatain a charge of bad faith 
and render his suit collusive. 

3. 8ame— Pbeliminart Injunction Kefused. 

Upon examination of the bill, aaswer, and affldavits, no circumstances enti- 
tling complainant to a preliminary injunction appearing to exist, tUe motion, 
therefore, is denied. 

In Equity. Motion for preliminary injunction. 

Roscoe Conkling, Clarence A. Seward, Barker Grunmere, and Edward 
T. Green, for plaintiff. 

1. Neither the act of March 3, 1875, nor the common law gives 
this court or any court jurisdiction of a suit which is simulated and 
ûctitiouB, or in which the reus on either side is not the real party 
in interest. Such suits are called "collusive," {Qardner v. Goodyear, 



d 54 FEDERAL BEPOBTEB. 

3 0. Gr\ 295,) and when thé collusion is proved the case is summarily 
dismissed as not within the proper jurisdiction of the court. Ameri' 
can M. P. Go. v. Vail, 15 Blatchf. 315 ; Cleveland v. Gfiamberlain, 1 
Black, 426 ; Lord v. Veazie, 8 How. 254. 

2. The allégation of collusion — ^that is, the want of real interest in 
one of the actors — is an allégation that the court has no jurisdiction 
by reason of the character in which one of the parties sues or défends. 
,This exception to the iurisdiction is called by the courts a "personal" 
exception ; asserts that the position of a litigant is assumed, and that 
the party is not an honest reus or actor. Forrest v. Manchester, etc., 
By. Co.é De G., F, & J. 131; Colman v. Eastern Cos. Ry. Co. 10 
Beav. 1; Saliabury v. Metrop. Ry. Co. 88 L. J. Ch. 251. 

3. That a suit is collusive must be objécted to by plea in abate- 
mentj and if a défendant answers upon the merits he waives the ob- 
jection,' and cannot thereafter contest the jurisdiction. Story, Eq. 
PI. § 721; Daniell, Ch. Pr. (15th Ed.) 630; UnderhUlv.Van Cortlandt, 

2 Johns. Gh. 339, 367; Canard \. Atlantic Ins. Co. 1 Pet. 386, 450; 
Dodge v. Perkins,A Mason, 435; D'Wolfw. Rabaud, 1 Pet. 476; Wood 
\.Mann,l Sumn. 581; Evans v. Gee, 11 Pet. 85; Rhode Islandv. 
Massachusetts, 12 Pet. 719; Nesmith v. Colvert, 1 Wood. & M. 37; 
Brown v. Noyés, 2 Wood. & M. 81 ; Webb v. Powers, Id. 510 ; Sims 
V. Hundley, 6 How. 1; Bailey v. Dozier, Id. 30; Smith v. Kernochen, 
7 How. 216; Skeppard v. Graves, 14 How. 509; Wickliffe v. Owings, 
17 How. 51; Jones v. League, 18 How. 76; Dred Scott v. Sandford, 
19 How. 397; Whyte v. Gibbes, 20 How. 542; De Sobry v. Nicholson, 

3 Wall. 423; Van Antwerp v. Hulbu.rd, 7 Blatchf. 427; Pond v. Ver- 
mont V. R. Co. 12 Blatchf. 297; Cause v. Clarksville, 1 FEp. Rep. 
355; Kern y. Hindekoper, 103 U. S. 485; Williams v. Nottawa, 104 
U. S. 211; Equity Rule, 39; Livingston's Ex'r v. Story, 11 Pet. 351, 
393. 

B. Williamson, George M. Robeson, Franklin B. Gowen, James E. 
Gowen, A. C. Richey, and G, R. Kaercher, for défendants. 

Nixon, J. Two questions are presented for the considération of the 
court— the first having référence to the bona fide character of the suit, 
and the second, to the propriety of the interférence of the court, under 
the présent aspect of the case, by ordering a preliminary injunction. 

1. The answer of the défendants, after responding to the material 
allégations of the bill, charges that the bill of complaint was not ex- 
hibited in good faith, or for the honest purpose of asserting the com- 
plainant's rights as a stockholder of the New Jersey Central Eailroad 
Company, but in the interests of a rival company to the Philadelphia 
& Reading and the New Jersey Central roads. This is an exception 
Personal to the complainant, and going to the jurisdiction of the court, 
and if introduced into the pleadings for contestation, it should hâve 
been by a plea in abatement. It has no proper place in the answer, 
and is always regarded as waived after the défendants hâve answered 
upon the merits. But as a very large amount of testimony has been 



FERRÏ V. TOWN OF WEBTFIEM). 155 

taken upon the subject, I hâve deemed it best to lay aside ail tech- 
nical objections to the informai manner in which the matter bas been 
presented, and to ascertain, if possible, whether the défendants hâve 
sustained their allégations by their proofs. After a careful examina- 
tion of the testimony furnished, I am of the opinion they hâve not 
sustained tbem. The most that has been done is to show that some of 
the officiais of a rival company, with which the complajnant has close 
business relations, hâve been friendly and active in giving him aid 
in the préparation of his case. I hâve never understood that a law- 
suit is of suoh an exclusive and sacred character that parties may 
not bave tbe sympathies and aecept the aid of associâtes and friends 
in carrying it on without subjecting themselves to the charge of col- 
lusion. 

2, With regard to the second point, the learned counsel, on the 
argument, took even a wider range than the testimony, and much 
iime was spent in the discussion of questions that more appropri- 
ately belong to the final hearing. I do not propose to follow them 
now. Without intending to intimate any opinion on the merits of the 
controversy, it is sufficient for my présent purpose to say, that, looking 
at the bill, answer, and affidavits, which furnish to the court the évi- 
dence on which to act on the question of a preliminary injunction, I 
find no circumstances existing and no facts developed which, in my 
Judgment, authorize me to interfère, at this stage of the proceedings, 
by ordering such an injunction to issue. 

The motion is therefore denied, but without préjudice to the com- 
plainant to renew it if any subséquent acts of the défendants, before 
£nal hearing, should render its renewal necessary or proper. 



Ferrt V. TowN DP Wbstpibld. 

{Oireuit Court, W. D. Wiseonsin. December Term, 1883.) 

JornsDiCTioN— CrrxzENSHip. 

Ferry v. Town of Merrimack, 18 Pbd. Rep. 657, foUowed, and cause remanded 
to State court. 

Décision Eemanding Cause to the circuit court of Sauk county. 

James G. Flanders, complainant's solicitor. 

H. W. Ghynoweth, defendant's solicitor. 

BuNN, J. This cause was argued and submitted upon gênerai de- 
murrer to the complainant's bill. But in the examination of the case 
there appears upon the face of the bill a certain defect of jurisdiction, 
which will render it unnecessary to remand the cause to the state court. 
The suit is brought by William F. Ferry, a citizen of Illinois, against 
iihe défendant, a citizen of Wisconsin, upon a claim arising upon a 



156 FEDERAL REPORTER. 

non-negotiable contract between the défendant town and the Chicago & 
Northwestern Raiiway Company, also a citizen of Wisconsin, and 
who assigned the daim to the plaintiif. The plaintiff is therefore 
suing upon a contract, hia title to whicb is derived through a formai 
written, assignment from a résident of the same state with the de- 
fendant, and who was itself incorporated by virtue of section 1 of the 
act of March 3, 1875, to maintain a suit thereonin the federalcourt. 

The question was before us and decided in the case of the same 
plaintifï against the town of Merrimack, at the présent term of 
this court, where the same defect appeared in the record. And we 
beg leave to refer to that décision for the grounds of the opinion that 
this court cannot take cognizance of such a case, whether originally 
brought hère, or begun in the state court and afterwards removed to 
this court on the application of the plaintiff. 

The case will be remanded to the circuit court of Sauk county, Wis- 
consin, from where it came to this court. 

Harlan, J., conours. 



Sharp v. Whitëside and others. 

Whiteside V. Sharp.* 

[Circuit Court, B. D. Tennessee, 8. D. October 1, 1883.) 

l. JURISDICTION — KEMOTAI, OF CAUSE— DiBSOI. VIN» PrEI.IMINART InJUNCTION 

Ghanted m State Coukt. 

A circuit court of tlie United States has no revisory power over the chancery 
court of a state, but wlien, before removal of a cause from the state court, an 
ex parte preliminary injunction bas beeu granted, it may in a proper case dis- 
solve such injunction. 
!. Pkivate Pkopbrtt Used for Park — Contuact to Excludb Persons kot 
Brought by Certain Partt — Tax on Pkofits— Injunction. 

The owner of what is known as the Point of Lookout mountain, a fa- 
vorite resort on account of tlie extended view tliercfrom, who was also the 
owner of a chartered turnpike which was a regular toll road leading up the 
mountain nearly to the Point, inclosed her ground as a park and charged an 
entrance fee from visitors. Subsequently she enterod into a contract with a 
certain party, by the terms of which he was to carry ail passengers over her 
turnpike instead of over another route leading to the Point, and was to hâve 
the exclusive privilège of bringing or conveying persons into tlie park. Com- 
plainant, who was engaged principally in the business of carrying visitors to and 
from the park, sought to enjoin the owner from rcfusing admission thereto to 
Buch parties carried there by him as might tender the usual admission fee. HeXd, 
that the fact that the park had long been a popular resort for sight-seers, that 
an admission fee was charged, and that a tax was Imposed by the state on the 
owner for the privilège of keeping a park, did not render the use to which the 
property was devoted a public use, or cliange the character of the property, 
and that the court could not invade' tho rights of the owner and enjoin her 

ISee S. C, anu, 150. 



BHAEP V. WHITE8IDB. 157 

from carrying out the terms of her contract. Eeld,fwther, that if she had at- 
temptcd to interfère with any of tbe rights of complainant in the use of the 
chartered turnpike such interférence would net hâve been tolerated. 
S. Samb — Taxation bt Statb— Effbot of, on Chakactkb or Busikkss. 

That the state imposes a tax on the privilège of deriving a profit from the 
use of property in a certain manner does net render suchuse public, but rather 
recognizes the fact that the property is private, and suûject to the control of its 
owner. 

Motion to Modify an Injunction granted in favor of eomplaînant 
Sharp in the state court, and to grant an injunction in favor of 
Whiteside, under her cross and supplemental bill. 

Lewis Shepherd, Key d Bichmond, and Clarke é Snodgrass, for 
Sharp. 

W. H. Dewitt and Wheeler ce Marshall, for Whiteside. 

Kby, Ji A short time since it was held that this cause had been 
removed to the circuit court of the United States, and the parties were 
allowed to perfect their pleadings. The injunctions in the cause hâve 
hitherto been granted in the state court, and a motion to modify or 
dissolve the injunction granted complainant Sharp under the orig- 
inal bill made by respondent Whiteside in the state court, has been 
denied by that court. It is insisted that this court has no power or 
right to review, change, or modify the action of the state court as to 
this injonction; that the question is res judicata. If the decree of 
tbe chancelier, under a proper condition of the cause, had been for a 
perpétuai injunction, the trutb of the position would be undeniable. 
This court has no revisory power over the chancery court. It can- 
not reverse or change its judgments or decrees. The case stands 
hère just as it would stand had it remained in the chancery court. 
The authority or power of this court over the case is no greater or 
less than that of the chancery court would be had this court never 
assumed jurisdiction of the cause. The injunction referred to was 
not perpétuai or permanent, and does not profess to be ; it is tem- 
porary and preliminary. The chancellor could hâve dissolved or 
modified it, whenever, in bis opinion, equity demanded it. As the 
cause proceeded, the time must come when this preliminary injunc- 
tion would hâve performed its office, and would bave been swallowed 
by one perpétuai in its character, or dissolved for want of merit. It 
has not the substantial éléments or permanent qualities belonging to 
stable and unyielding judgments. If tbe chancellor had at any time 
concluded that the injunction had been improvidently granted, or 
had the subséquent proceedings developed to bis satisfaction that 
the complainant was not entitled to the injunctive interférence of the 
court, he could bave modified or dissolved bis injunction without 
awaiting the final hearing of the cause. Preliminary injunctions in 
the courts of this state are generally and essentially ex parte, and 
the fiât awarding them is not a decree. It is an order, and the fact 
that, upon the coming in of the answer, a motion to dissolve was 
overruled, does not make the order any more a decree ; it simply in- 



158 



FEDERAL EBPOETEB. 



dicates that so far the court is satisfied ,with tbe injunction. It givea 
no decided assurance that it shall be permanent and perpétuai. The 
same discrétion and power the chancellor would hâve in his court I 
hâve in this. 

This court would hesitate before it would disagree with the state 
court upon preliminary questions. It would dislike a disagreement 
exceedingly. If, however, its well-considered aiid deliberate judg- 
ment should differ from the action of the chancellor, the judge would 
be derelict in his duty and unworthy of confidence should he fail to 
déclare the law and justice of the case as his judgment and con- 
science should dictate, from a sensitive regard for the action and 
opinion of his brother judge. Judges will disagree as well as doctors. 

The vital inquiry at the threshold of the considération of the mo- 
tions before us is whether the injunction granted by the chancellor 
under the original bill should be maintained, or shall it be modified, 
or shall it be dissolved. In view of the unquestioned and admitted 
facts as developed by the pleadings, what should be done in this re- 
spect? The questions to be considered are questions of law and 
equity, rather than disputed facts. There is little disagreement as 
to the material, essential facts. As stated in the original bill, and 
admitted in the answer, respondent, Florence Whiteside, is the owner 
of a tumpike road running from the foot to the top of Lookout 
mountain, ohartered by the state, and the people are charged toU 
fées for passing over it. It is a public tumpike road. The terminus 
of this road at the top of the mountain is about a mile and a quarter 
from what is known as the Point of Lookout mountain, a celebrated 
pa<rt of the mountain, which is visited by many for the fine view 
it affords of the surrounding country, and of several of the battle- 
fields of the late war. There is what is styled in the pleadings 
a dirt road between the end of the tumpike and the Point, which 
runs a great part of the way through the lands of respondent, Flor- 
ence Whiteside. The mountain ends abruptly at the Point, and she 
owns the Point and the lands back of it for a considérable distance 
to both brows of the mountain, so that it is impossible for vehioles 
to reach the Point without traveling over or through her lands. 
She has erected a fence across the mountain a short distance from 
the Point, which extends across from brow to brow, and incloses the 
Point and the top of the mountain adjoining it, and a gâte has been 
made for an entrance to this inclosure, and persons hâve been 
charged a fee of 25 cents for admission to this inclosure, which is 
called a park. There is no question but that Miss Whiteside, the 
respondent, has title to the Point and park. Complainant Sharp is 
the owner of and opérâtes a livery stable, and has been accustomed 
to carry passengers to the Point for hire, and to do this is the most 
valuable part of the business in which he is engaged. 

Before the filing of complainant's bill Miss Whiteside, through her 
agents, made a contraot with Owen & Co., the owners of a livery 



SHARP V, WHITBSIDE. 159 

stable, by which they were to take ail their passengers for Lookout 
mountain over her turnpike instead of a competing one, and no pas- 
sengers using bired means of conveyance to the mountain were to be 
admitted to the park and Point unless they had been brought there 
by Owen & Co.'s vehicles or horses. Complainant could pay bis toll 
andtravel the pike, but he and bis passengers could not enter the 
park and go to the Point, though the admission fee was tendered at 
the gâte. This gives Owen & Co. the carrying business to the Point, 
and for the privilège it is said tbat Owen & Ço. agrée to pay $5,000 
annually. 

It is also said tbat this arrangement is ruinous to çomplainant's 
business. He insists tbat as Miss Wbiteside charges ^n admission 
fee to the park and Point, theybecome a public institution in such 
sensé tbat she is bound to admit ail persons of good repute who ask 
for admittance and tender the fee; that she cannot discriminate in 
favor of Owen & Co. and against complainant, but sbould award the 
same rights and privilèges to both, and ail like concerns. He avers 
bis willingnesB to conduct bis conveyances over resppndent'a turn- 
pike, paying the usual toll, and to pay the admission fées for entrance 
into the park. An injunction was ordered and issued in accordance 
with the prayer of bis bill. Its terms are that respondents, "eacb 
and every of them, their servants, agents, and counselûrs, are en- 
joined from discriminating against complainant in bis business of 
carrying passengers oversaid turnpike road to the Point of Lookout 
mountain and into the park at the Point; also from ref using to admit 
the carriages and horses of complainant to pass over said road, and 
bis passengers to enter the park and Point on the same terms as the 
horses, carriages, and passengers of Owen & Co. are permitted to 
pass over the road and into the park and Point; also enjoining them 
from ref using çomplainant's passengers to enter the park and Point 
upon their paying the customary fées, and from refusing to furnisb 
çomplainant's passengers with tickets of admission to the Point at 
the toll-gate, as they bave been doing beretofore under the contract 
of Owen & Co. with respondent, Wbiteside, and as they continue to 
do the passengers of Owen & Co.; also enjoining them strictly from 
making or enforcing any contract with Owen & Co., or any otber per- 
son, which will directly or indirectly discriminate against çomplain- 
ant's business, or which will secure to said Owen &Co., or any otber 
person, any rights and privilèges whatever in respect to said turnpike 
road, and to said park and Point, which are not accorded to complain- 
ant on the same terms." 

The power of the court hère invoked and exercised is a tremendous 
one. It appropriâtes the use of the respondent's property to çom- 
plainant's use against her consent. It takes the property from her 
control in an important sensé against her will. We are now dis- 
cussing the case under the theory of the original bill, and witbout 
référence to the supplementary proceedings. The sovereign power of 



160 FEDEEAL EEPOETBB. 

the state, in the exercise of its right of eminent domain, may appro- 
priate private property to the public use upon giving just compensa- 
tion therefor, but this appropriation is made by some législative act, 
gênerai or spécial, when public necessity demanda it. The court bas 
no power to make the appropriation. It may be the instrument by 
and through which the détails of the appropriation are defined, de- 
clared, and worked out. But its act must be by reason of and within 
the scope of législative authority. There is no need of the élaboration 
of this question, since there is no claim predicated upon the right of 
eminent domain, 

Aside from the right of eminent domain, there is an inhérent 
power in the state, when necessary for the public good, to regulate 
the manner in which each person shall use bis own property, but 
this power of régulation rests upon public necessity, Bee Munn v. 
Illinois, 94: U. S. 125. 

Whether, like the right of eminent domain, some législative act 
must confer on the court authority to déclare and eflfectuate this use, 
it is, perhaps, unnecessary to détermine. There is probably no ques- 
tion, but that in the case of a common carrier, when the législature 
has not, in the charter or in the gênerai law, regulated the priées to 
be charged upon its business, the courts may, by injunction, pre- 
vent extortion or discrimination therein to a certain extent ; nor can 
it be questioned that the courts may compel a common carrier to 
receive and carry for every person such property or freights as it 
uBually transports on its Une, when the shipper has tendered the 
freight, and its proper costs and charges. The common carrier is 
granted power to do business for the public, and owing to the public 
nature of its business and contraots, the courts may control it to 
some extent, if the législature has failed to make any provision in 
regard thereto, or may confine it within the législative boundaries, if 
such hâve been provided. But in such instances the législative 
department has impressed the property with a public character and 
interest; not that the législative act could of itself make it so, but 
because the législative power is the proper source of authority to 
détermine when the public necessity exists. Then courts may regulate 
the fées and charges for the use, but the court caunot impress, dé- 
clare, and enforce the use. 

The control which courts may hâve over railroads and business 
incidental to and necessary for their conduct and opération, such as 
warehousing in our great railroad centers, is based upon publie 
necessity. Eailroads do nearly ail the business of interior trans- 
portation. The public is compelled to use them exclusively. There is 
scarcely anything to compete with them where they operate. Hence, 
discriminations or extortion cannot be tolerated in their manage- 
ment. If they refuse like facilities to their shippers, or discriminate 
in rates or otherwise, courts may compel them to be just. The 
cases of Munn v. Illinois and Adams Exp. Co. v. L. é N. B. R., 



SHABP V. WHITESIDE. 



161 



and other cases referred to, proceed on this theory. There is no 
such ground for jurisdictioa in the case under considération. There 
is no nécessité, public or other, for people to visit Lookout Point. 
That is a mare matter of taste, pleasure, curiosity. Commerce, the 
public weaJ, social order, the public health or comfort, hâve nothing 
to do with it. AIready the courts hâve gone "to the verge of the 
law" in the direction asked for hère, and it is apprehended that no 
authoritative case can be found which will carry us as far as we are 
now asked to go. 

Now, take the case in hand, Miss Whiteside, as the owner of the 
Point and park, or her privies in estate, at one time might hâve ex- 
cluded ail persons from entering upon either. It, to say the least, 
has been private property. No législative aot has declared a j)ublic 
use in it. If such use has been impressed upon it, it has been done 
by her. Holding the absolute title, she could control it as she liked, 
so long as she did not use it to the injury of others. She could bave 
donated.it to a public use generally and absolutely, or to such lim- 
ited use as she might prescribe, or she could hâve preserved its pri- 
vate charaeter. As her private property she had the right to in- 
close it ; af ter its inclosure she had the right to admit as many or as 
few within the inclosure as she pleased. Because she saw fit to 
admit Bome persons upon payment of a given fee gave to others no 
right to be admitted on the tender of a like fee. They were in no 
worse or différent position than before any admissions were madé. 
No loss had been sustained by them ; no considération had passed 
from them. Nothing can be found on which to predicate an equity 
in their favor. The fact that people may hâve been admitted to 
such an extent as to make the business of carrying pasaengers to the 
Point profitable to complainant raises no equity in his favor. It was 
brought about by no use of his property or expenditure of his money. 
Eespondent has as much right to require him to contribute such 
portion of profits as might be deemed équitable, which she has ena- 
bled him to make by the allowance of great numbers to go to the 
Point, as he has to demand of her the use of her property that his 
business may prosper. Neither he nor the public has any greater 
right to the property than she has given them. There is no greater 
obligation on her part to contribute to the public use, gratification, 
or pleasure than rests upon others. She holds her property subject 
to her control just as others hold theirs, until it is applied to the 
public use by an act of the sovereign power through methods known 
to the law, or until she appropriâtes it by her voluntary act to the 
use of the public. A court cannot appropriate it to such purpose 
against her consent. She can détermine who shall be admitted 
within her promises and who shall be refused admission. Of course, 
this remark has no référence to ofiScers of the law armed with pro- 
cess. 

There is no explicit allégation that she does not allow complainant 
v.l9,no.3— 11 



162 FEDESAIi BEPOBTBB. 

to take hiscon voyances over the tumpike. The contrary is to be in- 
ferred from the language uaed, and is eatablished by the record. The 
gravamen of the averments are that she is owner of the Point and 
park, as well as tumpike, and that the use she makes of the park 
and Point is a discrimination in favor of one concern traveling the 
pike and against another. Her tumpike is authorized by législative 
authority and is a public road, on which discriminations could not 
be tolerated. But because the owner of the pike may bave other 
property under a totally distinct title from that of the pike, and of a 
différent, charaeter, and applied to and appropriated for a différent 
use, there is nothing in law or equity which compels the owner to sub- 
ordinate the uses of the one to the purposes of the other. They are 
held as independently as though the title to each were in différent 
persohs. The law — the courts — cannot control the opérations of 
private business. In a free government the people must be left to 
the control of their own business. Compétition must be allowed, 
union and co-operations of inteirests must be permitted, so long as the 
law is not violated or private injuries done. 

Çomplainant bas engaged in a business in which he serves the 
public. He charges, as we will suppose, one customer three dollars 
for the use of a carriage and team, and another five dollars, and 
another still nothing for precisely the same service. Is there any law 
that will authorize the courts to control his action in thus discrimi- 
nating? The pleadings show that another turnpike. St. Elmo, runs 
up Lookout mountain, (which may be traveled as well as respondent's 
in reaching the Point,) and yet çomplainant tells us in his bill that 
he is willing to carry ail his vehicles and horses over respondent's 
pike if she will admit his passengers to the Point. Now, what rule 
of law or equity would allow çomplainant to discriminate against St. 
Elmo pike and in favor of respondent's, when it becomes his interest 
to do so, and yet not allow respondent to discriminate against çom- 
plainant and in favor of Owen & Go. in the way of admission to the 
park and Point when she may think it to her interest to do so ? 

It is said that the state bas imposed a tax on public parks, and 
that this is a législative act, declaring the charaeter and use of the park 
to be public. The taxation of the park indicates rather that the state 
considers it private property, It is not usual that publie property, or 
property set apart for public uses, is taxed, and it does not seem that 
the imposition of the burden of a tax on the property should be con- 
strued as setting apart the property to public use. It would be 
strange if a citizen of the state were required by the state to pay a 
tax for the privilège of having his property placed beyond his con- 
trol. On the contrary, it would seem that this taxation indicates 
that the state believed that the owner ought to pay a tax for the 
privilège of using her private property to raise money by charging 
the people for its use. So far from considering it an appropriation of 
her property to a public use, by which the public is benefited, and 



SHAEP C. WHITESIDE. 163 

throngh whicli it acquires to it Buch rights and equities as may be 
enforced by the courts, it is declared a privilège to allow the public 
to use it by the payment of a fee for admission theteto, for whieh 
the owner should be taxed. The benefit is to the owner and not to 
the public. Complainant is taxed for the privilège of charging his 
customers for his services, but that does not make Ma a public busi- 
ness. There is little question, probably, but that the public necessi- 
ties may require, under the proper conditions, that private property 
may be taken for the use of the public for purposes of récréation and 
pleasure, but the courts cannot undertake so to appropriate and 
apply it without législative authority. It follows from the views ex- 
pressed that the conclusion is that the injunction granted under the 
original bill, especially with the light thrown upon the case by the 
subséquent proceedings, ought to be dissolved. 

The first amended bill of complainant présents no features so 
différent from the original bill as to demand additional considération. 
The last amended bill of the complainant pi;esents a case very dif- 
férent from the theory of the original bill. It bas a twofold aspect : 
First. It allèges that respondent's turnpike road was chartered to run 
from the foot to the summit of Lookout mountain, and that the sum- 
mit is not at the brow of the mountain, but is near the Point, and 
that the dirt road from the brow to the Point is a part of the turn- 
pike, and was opened and used as such; that the park fence is built 
across the road and obstructs it, and is therefore a nuisance, by which 
complainant suffers irréparable injury. Second. It is alleged that if 
the dirt road is not a part of the turnpike, it was opened by the own- 
ers of the lands over which it passed, and dedicated to the public 
as a public road, and is obstructed as above shown. 

The last position is strongly fortified and strengthened, to say the 
least, by the use of the road for a period of 30 years and more, and 
by the terms and déclarations of deeds executed by the owners of the 
land for varions lots of land bounded by this road. The Point, how- 
ever, is not part of this road. The road does not quite reach it. If 
the road were thrown open from end to end to the public, every per- 
Bon might be excluded from the Point by its inclosure, or otherwise. 
The whole pleadings show that admission to the Point is what is 
wanted. This road leads to nothing but the Point. There is little 
or no value in the free and unobstructed use of the road by complain- 
ant, unless his passengers can be admitted to the Point after coming 
to the end of the road. This they cannot do without respondent's 
consent, and no case is made by which a court would be jnstified in 
forcing her assent. This obstruction of the road does not présent 
such an instance of irréparable damage as would authorièe the inter- 
férence of a court of chancery by its injunction. 

Miss Whiteside comes and files a bill in the nature of a cross-bill, 
in the cause, in which she gives a history of the case andrecounts 
the steps taken in it. She asaerts her right to the property and to 



164 FEDEBAL BEPOETER. 

l'ts absolute control, and asks that Sharp be enjoined from taking hifl 
Yehicles and passengers into the park and Point. Substantially, she 
asks this court to enjoin the injunction of the state court, which could 
hardly be done. The disposition made of the injunction under the 
the original bill destroys the foundation for Miss Whiteside's applica- 
tion anyway, and no injunction will be granted lier. 

There remains the injunction on Miss Whiteside's cross-bill, filed 
in the state court. No action is invoked in regard to it, and therefore 
no order is madé in référence to it. It appears to be innocent and 
harmless, anyway. 

The reasons glven by Judge Key for the distinction taken by him In the 
text are sô clearly and forciblystated that they call for no further exposition. 
The question, however, of illegality of contracts in restraint of business is 
one of sucli growing interest that it raay well daim a more minute and copi- 
ous discussion than is consistent with the adjudication of a single contested 
issue, such as that more immediately before us. Contracts of this class may 
beranged under the following heads: 

(1) Eestkiction of PuBi^io DuTiES. Wherevcr a public duty is la wf ully ac- 
cepted or imposed, a contract by the party who should discliarge it, to limit 
its efficieiicy to a particular class of persons, is invalid. No one who is bound 
to perform a public duty to a particular line of customers, clients, or dépend- 
ants, can, by contract, give a préférence to certain persons over others 
among the persons privileged. We may illustrate this position by cases in 
which, when public offices are by the law of the land opou to compétition, 
those having the disposai of such offices contract to sell them to particular 
aspirants. Aside from the objection tbat such contracts are void on the 
ground of corruption, they are void for the reason that they unduly re- 
strict the disposai of public duties which should not be so restricted.' The 
same reason avoids contracts for the influencing législatures to pass bills 
for the beneflt of some of the parties contracting, . Tliis is not merely 
because "lobbying" contracts of this class are against the poliey of the law, 
bnt it is also because agreements restricting the discharge of a public duty 
are in themselves invalid. And the reasons given for the rulings in this re- 
lation show that this distinction is generally recognized. Persons rendering 
professional services before committees of the législature may recover com- 
pensation for thèse services from the parties employing them. It is other- 
wise, however, when personal influence is used to induce legislators to dis- 
criminate between claimants for particular privilèges. " We hâve no doubt, " 
says SwAYNE, J., in a case in which this question came up before the su- 
prême court, "that in such cases, as under ail circumstanees, an agreement, 
express or implied, for purely professional services is valid. Within this 
category are Included draughting the pétition to set forththeclaim, attending 
to the taking of testimony, collecting facts, preparing agreements, and sub- 
mitting them orally or in writing to a committee or other proper authority, 
and other services of lilte character. AU thèse things are intended to reacli 
only the reason of those songht to be intluenced. They rest on the same 
principle of ethics as professional services rendered by a court of justice, 
and are no ruore exceptionable. But such services are separated by a broad 
line of démarcation from personal solicitation, and the means and appliances 

'Kingston v. Pierrepont, 1 Vern. 5; 4 Barn. & C. 319; Cardigan v. Page, 6 N. 

Blachford v. Preston, 8 T. R. 89; Gard v. H. 183; Gray v. Hook, 4 N. Y. 449; 

liope. 2 Barn. & G. 6(51; Thomson v. Hunter v. Nolf, 71 Pa. St. 232; Graut v. 

Tliomson, 7 Ves. 470 ; Waldo v. Martin, McLestey, 8 Ga. i353. 



8HAKP V. WHITBSIDB. '16Ô 

which the correspondence shows were resorted to in this case."' Thèse 
means were not payment of money, but application of social and politieal in- 
fluence to obtain undue discrimination in législation. And the same position 
bas been subsequently repeatedly realBrmed.^ And, on the same principle, 
agreements to induce an executive to prefer particular parties in the distri- 
bution of patronage bave been held invalid.* 

(2) Aqkeements not to Do Business ok Woekin a Paeticulae Place. 
The policy of law requires labor to be unrestdcted; and even were it not so, 
it might be a serions question whether the enforcément of an agreement to 
labor perraanently and exelusively for a particular person, at his absolute dic- 
tation, is not in conflict with that clause of tlie fourteeiith amendment of the 
constitution of the United States which prohibits involuntary servitude. If 
an agreement to labor permanently and exelusively for a particular person, 
without discrimination as to the line of labor, is valid, and can be enforced, 
then an agreement for life service eould be enforced. Aside from this difiS- 
culty, however, which will be considered more f ully under the next head, the 
good of society requires tliat imprôvident bargains by laborers to work ex- 
elusively for certain employers should not, as permanent arrangements, be , 
upheld. Hence, a spécial engagement to worlî for a particular employer for a 
particular time, will be.sustained, but not a permanent and exclusive trans- 
fer of services.* It is true that if a tradesman or a professional man agrée, 
upon selling the good-will of his business, not to interfère wltli his vendee, 
this agreement will be sustained by the courts, supposing that the restraint 
is reasonable.s But to be reasonable there must be a limit as to the space over 
which the exclusion is to operate, and a limit as to the particular kind of labor 
to be restricted. " When a limit of space is imposed, the public, on the one hand, 
do not lose altogether the services of the party in the particular trade; he 
will carry it on in the same wayelsewhere; nor within the limited space will 
they be deprived of the beneflts of the trade being carried on, because the 
party with whom the contract is made will probably, within those limits, ex- 
ercise it himself. But where a gênerai restriction, limited only as to time, is 
imposed, the public are altogether losers, for that time, of the services of the 
individual, and do not dérive any beneflt in return. " * 

' Trist V. Child, 21 Wall. 441. 1883,) reported in 49 Law T. (N. S.) 335, it 

2 Meguire v. Corwine, 101 IT. S. 111 ; was held that an agreement by a person 
Oscanyon v. Arms Co. 103 U. S. 261 ; einployed by another not to carry on a 
Powefs V. Skinner, 34 Vt. 274 ; Bryan v. business such as that of the employment 
Reynolds, 5 Wis. 209 ; Gill v. Williams, 12 at àiiy time thereafter within a certain 
La. Ann. 219. area, is, in the absence of a spécifie cove- 

3 AVakefleld Co. v. Normanton, 44 Law nant or stipulation to the oontrary, to be 
T. (N. S.) 697; Tool Co. v. Norris, 2 Wall, understood to continue during the whole 
45; Pingry v. Washbnrn, 1 Atk. 264, of the employe's life-time, notwithstand- 

*Collins v. Locke, L. R. 4 App. Cas. ing the employé bas removed his business 

674; Farrer v. Close, L. R. 4 Q. B. 612; toanother place, andassigheditto athird 

Spinning Co. v. Riley, Ty. R. 6 Eq. 551. iterson. The défendant, thesuit being for 

siionsillon v. Ronsillon, L. R. 14 Cil. an injunction, on entering upon an em- 

Div. 351; Vickery V. Welch, 19 Pick. 523; ployment as shopman to C, an Italian 

Taylor v. Blanchard, 13 Allen, 370 ; Keller warehouseman, agreed with C. (there be- 

V. Taylor, 53 Pa. St. 467. ing no mention of assigns) not to carry on a 

6 Wood V. Byme, 5 Mees. & W. 562. similar business within a mile of C.'s then 

Since the publication of my book on shop. C. afterwards moved his business 

Contracts, in 1882, there hâve been several to other premises, 450 yards distant, the 

cases affinuing the gênerai principle there défendant continuing with him as shop- 

stated and repeated in this note. Thus,in man. The défendant gave up his situation 

Smith V. Martin, 80 Ind. 260, it was held shortly after his removal, and then, some 

that an agreement by a milkman not to additional time elapsing, C. sold his in- ■ 

sell milk at a particular town was good as terest and good-will in the business to J. 

to sales in such town, but did not prevent It was held (Bbett, M. R., and Coltos 

him from seUing milk at his farm, ont of and Bowen, JJ., reversing Bacon, V. C.) 

town. In Jacoby v. Whittuore, (July, that the dafendant should beenjoi,ied, on 



106 federal eepobteb. 

(3) Agreements to Labob Exolusively fok Paeticulak Peesons. 
In cases of this class two contticting principles are to be reconciled. One of 
tliese principles is that no agreement is to be sustained when theeffect of it 
would be to draw permanently and absolutely from the market any spécifie 
quota of labor by whicb the market would be improved. The other is that 
freedom of contract should not be impaired. ïhese two principles are recon- 
ciled, in the relation hère noticed, by the position that freedom to contract 
to Withdraw from labor is to be sustained in ail cases in which the with- 
drawal is limited to a particular placé and to a particular Une of business. 
The same distinction is applicable to agreements by parties to deal exclusively 
with each other in particular Unes of business. The law of partnership as- 
sumes that such an agreement, when either for a limited time, or when dis- 
soluble at the will of the parties, is promotive of the public good as well as 
of the good of those immediately concerned; and hence partnership articles, 
when so conditioned, hâve been sustained in ail jurisprudences. Still more 
marked illustrations of the principle before us are to be found in the well- 
known English rulings in which it is held not to be against the policy of 
the law for a purchaser or lessee of laud from a brewer to covenant that in 
case he opens a public house he will buy ail his béer from such brewer.* It 
has even been held that a contract by an author to write exclusively for a 
particular publisher will be sustained ;s though this must be on the supposi- 
tion that the contract is reasonable, and does not put the author in a position 
in which lus productive powers would be limited, or his services secured on 
an inadéquate rémunération. • And in McCaull v. Benliam,^ which was an 
application for an injunction to prevent an opéra singer from violating an 
agreement to sing exclusively for the plaintiff, Brown, J. said: "Contracts 
for the services of artists or authors of spécial nierit are personal and pecul- 
lar; and when they contain négative covenants, which are essential parts of 

the application of J., from setting up à public policy fora peraonentering an em- 

similar business at a spot within a mile ployment to enter into a covenant, re- 

from both of C.'s places of business, strioted aa to space, not to oarry on the 

"Apart," said Bowen, Ij. J., "from the same business on his own account, even 

question as to restraint of trade, a man if his employer sliould leave the business, 

luay bargain as he'chooses. Sometimes The employer wishes to hâve secnrity 

it is said that contracts as to personal serv- given to the business not only while he is 

ice cease with the employment ; but carrying it on himself, but in favor of his 

there is no doubt that a man may bind successors, and during the whole life of 

himself by a contract with a master so the cov«nantor ; and, if reasonable when 

long as he is in trade ; otherwise it could made, subséquent ciroumstances do not 

be said that the contract was that Cheek atfect the opération of the contract under 

was only to hâve the beneflt of it so long the rule as to contracts in restraint of 

as he carried on business. The assigns are trade. Therefore, the obvions reading of 

;iot mentioned in this apreement, but, this contract does not make it unreason- 

reading it in the plainest way, it is that able. Then is such a contract assignable ? 

Whitmore (the défendant) was at no time If it is for ail time, it may, of course, be 

thereafter to carry on business within a enforced after Cheek (the employer) has 

certain distance of this shop. Then how left the business. Another question is, 

does the doctrine as to restraint of trade whether the benefit of the contract was 

I)revent that construction î If that con- assigned or not. I think it was. It is 

struction would show that the contract part of the bénéficiai interest, and it is 

was unreasonable, as being in restraint of part of the good-will. It is said that the 

trade, the agreement should not he so agreement did not bring customera to the 

read. The only way other cases affeotthe shop, but it prevented them from being 

point is that, if being construcd in a par- taken away." 

ticular way, the contract would be in re- ' Cooper v. Twibill, 3 Camp. 286n ; Gale 

straint of trade, that construction should v. Reed, 8 East, 80 ; Catt v. Toiirle, L. E. 

not be put upon it. What is restraint of 4Ch.654. 

trade? Ail contracts in restraint of trade * Morris v. Colman, 18 Ves. 43V. 

are not void,— that is conclusively settled " 16 Fed. Rep. 37, (U. S. Cir. Ct. N. Y. 

on the authority of cases in the exchequer 1883.) 
chamber and other courts. It is not against 



SHARP V. WHITESIDE. 167 

the agreement, as in tliis case, that the artist will not perform elewhere, and 
the damages, in case of violation, are incapable of definite measurement, they 
are to be observed in good faith and specially enforcéd in equlty." To thîs 
efifect are cited Howard v. Hopkyns,^ Fox v. Scard,^ Jones v. Heavens,^ 
Barnes v. McAllister,* NessU v. Eeese,^ Trener v. Jaioksonfi Contracts, there- 
fore, by which a particular artist is bound to glve hiis services for a specifled 
season to a particular manager are valid and will be enforcéd, the reason being 
that the artist is not bound to render his services to ail applieants indiscrim- 
inately, and that thèse services are in a spécial volnntary line. The same 
rule applies to contracts with physicians; though there can be no question 
that il a hospital or dispensary should be chartered for the express purpose of 
aflording relief to ail patients without discrimination, contracts made by it 
to confine its beneflts to a particular Une of applieants would be held invalid. 
But in any view contracts of this class will not, if oppressive, be enforcéd 
in equlty. Thus, in a Pennsylvania case,' the évidence was that Keeler 
agreed to instruct Taylor in the art of making platfonn scales, and to employ 
him in that business. Taylor engaged to pay Keeler, or his légal représent- 
ative, $50 for each and every scale he should thereafter mate for any other 
person than Keeler, or which should be made by imparting his information 
to others. This was held to be an unreasonable restriction upon Taylor's 
labor, and therefore void as in restràint of trade and legitimate compétition. 
The case being an application to a court of equity to enforce a bargain, it 
was held that, though "contracts for partial restraints may be good at law, 
equity is loatli even then to enforce them, and will not do so if the terms be 
at ail hard or even coraplex. " It was àddsd that, if It were not void, however, 
a chancellor would regard the hardships of the bargain, and the préjudice to 
the public, and would withhold his hand from enforcing it." 

(4) Agreements Only to Producb or Labor for a Particular Mar- 
KET. An interesting distinction is hère to be observed. It may be that a 
party owiiing particular staples, or having the control of labor to any large 
amount, is under no duty to offer thèse staples or labor to the oommunity at 
large. If this is the case, agreements made by him, on a suflSeient considéra- 
tion, to give thèse staples or this labor exelusively to particular persons are 
valid. It is otherwise when.the agreement is to give a monopojy to a partic- 
ular party of a commodity which should be open to purchase to the com- 
munity at large.* 

(5) AGEEESfENTS BY A COMMON CaKRIEB TO DlSOEIMINATE AGAINST PAH- 

TiciTtAE Parties Entitled to be Aooepted as Cttstomeks. A common 
carrier is bound to afford equal facilities to ail custômera paying him a rea- 
sonable fare. A récent illustration of this rule is to be found in Wells v. 
Oregon R. R.^ In this case, which was a bill in equity before Field, J., 
asking for an injunction, the plaintifl claimed to be a corporation under the 
laws of Colorado, engaged in the express business on the Pacific eoast, The 
défendants were corporations under the laws of Oregon, owning steam-ves- 
sels on the Pacifie waters and tributaries, and railroads on the Pacific coast. 
The plaintifl's business was that of a carrier of parcels under the direct super- 
vision of agents accompanying them from tlie office of the owner or sliipper, 
and delivering them at the office of the consignée. The plaintiffs, in other 
words, were express agents ; the défendants proprietors of a steam-boat and 
railroad line; and the question presented, to adopt the language of Pield, J., 

1 2 Atk. 371. « 46 Ho w. Pr. 389. 

« 33 Beav. 321 . » Keeler v. Taylor, 53 Pa. St. 468. 

«4 Ch. Div. 636. « See Whart. Cent, g 442. 

' 18 Hg-w. Pr. 634. » 18 Fed. Kep. 518. 

»29How. Pr. 382. 



168 fEDEBAIi fiEPOBTEB. 

was: "Shall the railway companies and stearn-ship companies engaged in that 
trade be required to furnish facilities to the express companies in the trans- 
action of this business? ïhe business would entirely fail, and come to an 
end, if certain facilities for its transaction were not afforded them, such 
as allowing to them spécial cars or apartmeuts, or definite spaces in them, 
for the transportation of such articles, with a messenger in charge thereof, 
having sufficient room for the assortaient of the articles by him while in 
transit, so as to facilitate their delivery at the différent stations to which they 
may be destined. It may be difflcult to define with accuracy wbat should be 
deemed proper facilities in each case. Thaï will dépend very much upon the 
extent of the business, and the character of the articles carried by the express 
companies. In the présent cases it is not necessary to designate what those 
facilities should be. The object of the two suits is to restrain the défendants 
from deuying to the plaintiff the facilities which hâve heretofore been fur- 
nished to it." He proceeds to say: "The question is one of much difficulty, 
and its correct solution will be f ar-reaching in its conséquences. It has been 
before différent circuit courts of the United Statea in some cases, but lias 
never been brought before the suprême court. In the case ot Southern Exp. 
Co. V. St. Louis., I. M. & S. S. Co., in the eighth circuit, it was considered by 
Mr. Justice Millek of that court, sitting with Judge McCrary in holding 
the circuit court. 10 Fed. Eep. 210. The railroad Company in that case was 
enjoined by them from refusing or withholding the usual express facilities 
from the plaintifî. In giving his conclusions, Mr Justice Miller, amoug 
other things, held that the express business is a branch of the carrying trade, 
which, by the necessities of commerce and the usages of persons engaged in 
transportation, has beeome known and recognized so as to require the court 
to take notice of it as distinct from the transportation of the large mass of 
freight usuàlly carried on steam-boats and railroads; that the object of this 
express business is to carry small and valuable packages rapidly, in such man- 
ner as not to subject them to the danger of loss and damage, which, to a 
greater or less degree, attend the transportation of heavy or bulky articles of 
commerce; that it is one of the necessities of this business that the packages 
should be in the immédiate charge of an agent or messenger of the company, 
or parties engaged in it, without any right on the part of the railway com- 
pany to opén and inspect them; that it la the duty of every railroad company 
to provide such coiiveyance, by spécial car or otherwise, attached to their 
freight or passenger trains, as are required for the safe and proper transpor- 
tation of this express matter on their roads; that the use of thèse facilities 
sliould be extended on equal terms to ail who are aetually engaged in the ex- 
press business, at fair and reasonable rates of compensation, to be determined 
by the court when the parties cannot agrée thereon; and that a court of equity 
has autliority to compel the railroad companies to carry this express matter, 
and to perform the duties in that respect. The same question has been de- 
cided substantially in the same way in other cases. From the décisions ren- 
dered in some of them, appeals bave been taken to the suprême court, and 
the cases are now on its calendar, Under thèse eircu instances I hâve come 
to the conclusion to follow the view expressed in tliera, ratlier than to go iiito 
an extended considération of the question. The following cases are now 
pending in the suprême court: Memphis & L. R. R. Co. v. Southern Exp. 
Co., Ht. Louis, I. M. c6 S. R. Co. v. Southern Exp. Co., and Missouri, K. 
& T. R. Co. V. Dinsmore, Président of Adams Express Company. In their 
détermination the question presented will be definitely and authoritatively 
settled." 

For the reasons above given, the suprême court of Connecticut held in- 
valid a contraot by which the Hartford & New Ilaven Railroad agreed to de- 
liver to tiie New York & New Haven Raih-oad at New Ilaven ail passengers by 



SHAEP V. WHITESIDE. 169 

its line for New York ; and the New York & "New Haven Eailroad was to pre- 
vent the construction of a railroad which would be a rival and a competitor 
of the Hartford & New Haven Railroad. This was declared by the court 
to be a contract void as against public policy.' 

It has been held in New York^ that a contract precluding one of the con- 
tracting railroads from building branches was void as an infringement of 
the rights of travel. The court says: "It is a compact between the par- 
ties intended to affect the facilities for public travel over a route of rail- 
road whieh had been or might be authorized by law. * * * Such an ar- 
rangement was intended to prevent the extension of the New Haven & 
Northampton Railroad to any point north of its terminus at Qranby, and to 
prevent any compétition in travel detrimental to the interests of plaintiff's 
road, which had a monopoly of the carrying trade from Springfleld, and points 
north of Springfleld, via the Northampton & Springfleld Railroad, which such 
extension might alïeet. The completion of the New Haven & Northampton 
Railroad to Northampton would open a new line for travel southward, which 
would be a compétitive rival of the road of the plaintiffs. Such compétition 
and rivalry it was not lawful for thèse parties to prevent, or atterapt to pre- 
vent, and any contract to efEectuate such a purpose is void. Public policy 
is opposed to any infringement of the rights of travel, or of any of the facil- 
ities which compétition may furnish; and the law will not uphold any agree- 
ment which does or may injuriously afEect such rights or faCilities;" citing 
Doolin V. Ward,^ HooJcer v. Vandewater,* and Hood v, N. Y. & N. ZT. R. R,^ 

In Rookerw. Vandewater' the proprietors of flve several lines of beats, 
engaged in the business of transporting persons and freights on the Erie and 
Oswego canals, entered into an agreement araong themselves to run for the 
remainder of the season for certain rates of freight and passage, then agreed 
upon, and to divide the net earnings among themselves, aecording to certain' 
proportions flxed in the articles. This agreement was declared illégal. "It 
is a familiar maxim, " said the court, "that compétition is the Ufe of trade. It 
foUows that whatever destroys or even relaxes compétition in trade is in- 
jurious, if not fatal, to it." 

In Dentier R. R. v. Atchlson, Topeka, etc., R. R.,'' it was held by the circuit 
court for Colorado that a contract between two railroad corporations, by 
which they agreed to exchange their trafflc, and not to "connect with or take 
business from or give business to any railroad" which might be construeted 
in Colorado or New Mexico after the date of the agreement, is void as against 
public policy. This ruling is sustained by an instructive note by Mr. Adel- 
bert Hamilton, citing Charlton v. R. fi.,« Sait Co. v. Quthrie,^ Central R. R. 
V. ColUns;^" though it is admitted that the point is decided difCerently in 
Hare v, R. R.,^^ Southsee Co. v. London R. R.,^^ and Eclipse Co. v. R. R.^* 

In Twélls V. Penn. R. R.^* it was decided by the suprême court of Pennsylva- 
nia in 1863, that, though A., a railroad company, may bave power to discrimi- 
nate between "local" and other freights, it cannot make such a discrimina- 
tion on the ground that the freight discriminated against is to be carried to 
its place of final delivery by another company after reaching the termi- 
nus of A.'s route. "The défendants," said Strong, J., (afterwards a judge 

1 State V. Hartford & N. H. E. Co. 29 «5 Jur. (N. S.) 1100. 

Conn. 538. »35 Ohio St. 672. 

s Hartford R. E. v. N. Y. & N. H. R. E. "40 Ga. 582. 

3 Rob. 411. " 2 Johns. & H. 80. 

s 6 Johns. 194. •« 2 Nev. & Man. 341. 

♦4 Denio, 349; 29 Cîonn. 538. "24 La. Ann. 1. 

6 22 Conn. 502. " 12 Amer. Law R^. (0. S.) 728 ; 8 Amer. 

«4 Denio, 349. Law Reg. (N. S.) 728; 21 Les. Int. 180. 

'15 Ped. Rep. 650. 



170 FEDEBAL REPORTER. 

of tlie suprême court of tlie United States,) giving the opinion of the suprême 
court of Pennsylvania, "are authorized by their charter to be common carri- 
ers on tlieir railroad from Pittsburgli to Philadelphia, with power to establish, 
demand, and receive such rates of toll, or otlier compensation, for the trans- 
portât! on of merchandise and commodities as to the président and directors 
shall seem reasonable. It is admitted that, in the exercise of thèse powers, 
they must treat ail customers alike. Now, it is clear that if they receive 
coal oilat Pittsburgh to be carried to Philadelphia, it can make no différence 
to them, either in the risk or cost of transportation, whether Philadelphia 
is the point of ultimate destination of the oil, or whether the consignée in- 
tends that it shall afterwards be started anew on another Une, and forwarded 
from Philadelphia to ÎTew York, The point of final destination of the 
freight is a matter in which they hâve no interest as carriers over their own 
road. If it be admitted that they may contract to carry freight to points 
beyond Philadelphia or Pittsburgh, over Connecting lines, it is still true 
that as to ail carriage beyond the termini of their own road they stand in 
the position of third parties, and they can no more secure to themselves an 
advantage over other carriers on the Connecting lines by discriminating in 
tolls on their own, than they could secure similar advantages to one ship- 
per over another in the same way; yet this is the practical effect of the rég- 
ulation which the défendants are seeking to enforce against the complainant, 
and we cannot doubt that such is their object in making it. ïhey in reality 
say to him: 'Employ us to carry your oil, not only over our road to Phila- 
delphia, but thence to New York. If you do not, we will exact from you 
for its carriage to Philadelphia six cents per hundred pounds more than we 
demand from ail others who employ us to transport similar freight only to 
Philadelphia. Or, if you employ us to carry it to New York atter it shall 
liave reached Philadelphia, we will carry it to Philadelphia for six cents less 
per hundred pounds than we are accustomed to charge others for similar 
transportion.' No one will maintain that they can lawfully make such 
a stipulation for the beneflt of a third party, e. g., one of two other carriers. 
They cannot say to a shipper at Pittsburgh, of any domestic product, 'You 
hâve freiglit destined to New York. You must send it over our road to 
Philadelphia. If, when it arrives there, you will forward it by A. to Mew 
York, we will carry it over our Une at certain rates. If you send it by any 
other than A. our charges will be higher.' This is a discrimination that can- 
not be allowed. Conceding it, would put in the power of the défendants a 
monopoly of the carriage of ail articles- which pass over their road from 
either terminus to every place of final delivery. The oppressive efEects 
of such a rule are the same, whether its motive be to benefit third parties, or 
tlie railroad eorapany itself. Of transportation along the Une of their road 
the défendants practieally hâve a monopoly. It is not consistent with the 
public interests, or with the common right, that they should be permitted so 
to use it as to secure to themselves superior and exclusive advantages on 
other lines of transportation beyond the ends of their road. If they contract 
to carry freight to distant points in other states and countries, they should 
stand on the same footing with other carriers, over other roads and lines 
thàn their own. If they may use their exclusive powers over their road so 
as to force into their own hands ail external carrying trade, and do this at 
tlie expense of a shipper or class of shippers, it is quite possible for them to 
exclude one domestic product from ail foreign markets. Shippers of such 
products might be compelled to seek a final market in Philadelphia, under 
penalty of such increased rates of toll beyond as to make it impossible for 
tliem to flnd any other place of sale. Thèse conséquences, more or less ag- 
«riavated, according to the will of the défendants, and according to interests 



SHARP V. WHITESIDE. 171 

they raay hâve distinct from those wliieli belong to them aS owners of their 
road, flow naturally from permitting the destination or usé to be made of 
freight, after it bas left the road, to affect the priée of carriage over it. 

"In Baxendale v. Qreat Western R. Co. (14 C. B. N. S. 1 ; 16 C. B. N. S. 137) 
it was held that the company eould not secure to themselves a monopoly of 
the delivery of goods beyond the termination of their road by a generji régu- 
lation charging a gross price for carriage on the road, including the cost of 
such delivery, to ail persons, whether they receive their goods at the station 
or beyond. In other words, they were not allowed to rnake use of their rights 
over their road to secure to themselves advantages beyond it. That there are 
spécial privilèges to individuals or classes of men, makes no différence, for 
they are but declaratory of the common law. Sanford v. Catdwissa R. Co. 12 
Harris, 378. AVe hold, then, that the rule of the défendants, of which thè 
complainant complains, is unreasonable, and such as they bave no légal right 
to enforce. ïlie apology set up for it is not sufficient. That the imposition 
of higher rates for carrying the complainant's oil to Philadelphia, because it 
is afterwards to be forwarded in some way to New York, is necessary to pré- 
vaut bis having an advantage in the New Yoi-k market over those wbo em- 
ploy the défendants to transport ail the way, or over those who send oil from 
Pittsburgh to New York with through bills of lading, is a matter outside of 
their eontrol. It haa no proper relation to them as carriers. " 

T wo points are worthy of notice in référence to this remarkable case. The 
flrst is that, though reported in two current Philadelphia perodicals, above 
noticed, it is not to be found in the regular Pennsylvanîa reports. The sec- 
ond point is that at the same terra of the suprême court of Pennsylvania 
was decided, Judge Stbong also giving bis opinion, the case of Shipper v. 
Pennsylvania R. R., (reported in 47 Pa. 8t. 338,) in which it was held that the 
Pennsylvania Bailroad Company had a right, under its charter, to charge a 
higher freight on goods coming to it from beyond the State than it had for 
freight delivered to it in the state. "There is nothing," se Judge Steong 
closes bis opinion, "in the constitution of the United States that prohibits a 
discrimination between local freight and that which is extraterritorial, when 
it commences its transit. Such a discrimination dénies to no citizen of 
anotiier state any privilège or immunity which it does not deny to our own 
citizens." 

On the same reasoning it bas been held that an agreement whereby a rail- 
road corporation grants to a telegraph company the exclusive right to put 
on the railroad track a telegraph line, cannot be sustained. The reasons 
given are twofold: First, such a monopoly cripples compétition, and is 
therefore in restraint of trade; seœiidly, telegraph companies are by act of 
congress authorized to operate telegraph Unes on ail roads used as post-roads.' 
On the question of the right of a railroad corporation to give the exclusive use 
of its traflk to a particular telegraph company, the suprême court of Illinois 
says: "The objection to the con tract on the ground df public policy is thàt 
it gives to the appellant, the Western Union Telegraph Company, the mo- 
nopoly of the telegraph business along the line of the railroad. However it 
may be as to the provision of the contraet in this respect, taking in its full 
extent of an exclusive right of way ànd the discouragement of compétition, 
in 80 far as it goes only to the exclusion of competitors from the line of 
pôles occupied by a complainant, when direct injury to the actual working 
of complainant's line of wlre might resuit, it is, in our view, not liable to 
this objection. So long as any other company is left fr.ee to erect another 
line of pôles, we see no juat ground of complaint on the score of monopoly 

' Western V. Tel. Co. v. Burlington R. Tel. Co. v. Railroad, 1 McCrary, 541 ; 
R. H Fed. Rep. 1 ; Pensacola Tel. Co. v. We-stem U. Tel. Co. v. Railroad, Id. 665. 
Western U. Co. 96 U. S. 1. See Atlanta 



172 FEDEBAL REPOiiTEû. 

or the repression of compétition." Western U. Tel. Co. v. Chicago & P. R. 
R. and Atlantîe & P. Tel. Co. 86 111, 246. 

In Western U. Tel. Co. v. Atlantic, etc., Tel. Co., in the court of common 
pleas of Columbus, Ohio, Judge Gbeen gave an opinion from wliich the fol- 
lowing extracts are taken: "ïhis eontract embraces otiier provisions wliich, 
as it is alleged, the défendants propose to interfère with. It will be ob- 
served that it is not averred in the pétition that the défendants propose to 
remove any but the one wire, — the railroad wire, — nor to prevent the plaintiff 
from using or continue to use, for the transaction of its business as a tele- 
graph Company, the other wires on the pôles erected under the eontract. 
ïlie complaint is that the railroad company proposes to violate a term or 
covenant of the eontract by permitting a corapeting line of telegraph to be 
erected on its right of way by a rival company, by which its profits will be 
greatly diminished. The covenant referred to will be found in the sixth 
clause of the eontract, and is in thèse words: 'ïhe railroad company is not 
to permit any other telegraph company or individual to build or operate a 
line of telegraph along its road or any part thereof.' The clause of this eon- 
tract now under considération, if it shall receive the construction claimed 
by the plaintifE, is,' in my opinion, against public policy. 

"In the case of St. Joseph & D. C. R. Co. v. Ryan, reported in 11 Kan. 602, 
a railroad company, in considération of a grant of a right of way through 
certain lands, agreed with the owners to erect and maintain a dépôt upon 
said lands, and not to hâve any other within three miles thereof. It was 
held that the eontract was against public policy. See, also, 24 Pa. St. 378. 
The public hâve a deep interest in the opération and establishment of Unes 
of télégraphie communication; it would be inéquitable that the rights of the 
community should be sacrificed to insure the alleged privilèges of the plain- 
tiff from ail possible damages. In view of the facts of the case, sliowing 
that thèse corporations are not the only parties interested in the eontract, 
and that the public at large hâve a deep interest in it, it would in my opinion 
be an unwarrantable exercise of power in a court of chancery to grant an 
injunction." This case, so it was stated in the argument in Western U. 
Tel. Co. V. Baltimore <& 0. R. Co., was decided iu 1876, and a competing line 
of telegraph has been operated upon the Central Ohio Eailroad ever since. 

In Wester7i U. Tel. Co. v. Union Pacifia R. R.} Judge Miller thus speaks: 
" It was one of the provisions of this eontract that the railroad company 
should not send over its wire any commercial messages, or any paid mes- 
sages, or messages for any other person than for its own business, the 
purposes of which evidently was to leave the exclusive right to convey such 
messages to the telegraph company. And it waa to enforce this clause 
of the eontract that the injunction was obtained by the "Western Union 
Telegraph Company in the state court. And it is to get rid of this provision 
and permit the railroad company to convey such messages, and to unité 
the wires of the telegraph company with the American Union Telegraph 
Company that messages may be conveyed brought by the American Union 
Telegraph Company over the wires of the Western Union Telegraph Com- 
pany, that the présent motion is made. * * * We are both [McCkaby 
and Milles, JJ,"] of opinion thab thè railroad company has the right, as it 
always had, to the exclusive use of the first' wire on the telegraph pôles, 
and we are of the opinion that, as the matter stands at this stage of the pro- 
ceedings, that company should hâve the right, pending the further litigation 
of the case, to use that wire, not only for the ordinary business of the road, 
but for the piirpoâe of transmitting commercial and paid messages for the 
public in gênerai." 

iMcCrary, 585, 597; [S. C. 3 Fed. Rep. 725, 734.] 



benediot *. st. joseph & vf. b. 00. 173 

(6) When there is no Public Dutt then theee mat be Disceimi- 
NATiON. The distinction between the cases resta on the question of public 
duty. When a party is bound to perform a public duty without discrimina- 
tion, then an agreement to give préférences to particular persons is invalid. 
When, however, as in the case in the text, there is no such duty, then there 
may be a discrimination for the reasons given with much ability by Judge 
Key. Had the défendant. Miss Whitesides, been under any public duty ta 
permit no discrimination in the réception of persons visiting her estate, then 
a contract by her to admit only such persons as should corne in a particular 
line of travel would be invalid. This would unquestionably be the case did 
she undertake to reçoive guests as at a public inn; since, as is pointed out 
by Mr. Justice BiiADLEY in bis opinions in the civil rights questions,' the 
proprietor of au inn or a hôtel is not permitted to discriminate arbitrarily 
betvs'een différent classes of guests. But Miss Whitesides was not in this po- 
sition. A visit to her estate was not a necessity, as is the case with the ac- 
commodations obtained by travelers from hotel or common carrier. The 
visit was a matter of luxury, and on the enjoyment of this luxury she was 
erititled to impose whatever restrictions she chose. It is true that the Une 
between the two classes of cases may sometimes be shadowy. When, how- 
ever, we apply the criteriou of public duty, the two classes of cases become 
readily distinguishable. We hâve this iUustrated in some récent rulings as 
to contracts by which certain téléphone companies agrée to deal exclusively 
with certain telegraph companies. In Connecticut such a contract has been 
lield to be valid.^ On the other hand, a similar contract has been held to be 
invalid in Ohio ; and the reason of this ruling may be found in the fact that in 
Ohio a statute exists prescribing the impartial transmission of ail dispatches. 
A similar statute no doubt exists in Connecticut; but it was not regarded by 
the court as binding the téléphone company. But. whatever we may think 
of this distinction, we may regard it as settled that the only cases in which a 
party is preventedfrom discriminating between persons seeking to do busi- 
ness with him are the following: (1) Where he has the monopoly of some 
staple whose use is essential to the community: (2) Where, as is the case 
with common carriers and innkeepers, he is required by law to place ail ap- 
plicants, not subject to exclusion. on police grounds, on the same footing. 

Francis Wharton. 

> 3 Sup. et. Rep. 18. » Amer. Eapid Tel. Co. ▼* Téléphone 

Co. 13 Keporter, 329. 



Benediot and others v. St. Joseph & W. E. Co. and' others. 
(Gircuit Court, D. Kariaa». November 30, 188? ) 

1. MORTGAGE OP RAILROAD PrOPEBTT — FoBECLOSUBE — WaIVBB OF APPBAI8B- 

MBNT— LaWS OF KANSAS. 

Under section 3983 of the Compiled Laws of Kansas no order for the sale of 
railroad property mortgaged with a waiver of appraisement can be made by 
the court until the expiration of six months after the decree of foreclosure. 
This statute régulâtes the traàsfer of land witliin the state, anii is tbe^ëfoce 
binding upon the fédéral courts. •■■ 

2. Same — Appointmbnt op Recbivbb. 

After such foreclosure the income of the road, being the property of the 
bondholders for the liquidation of their claims, shoùM be received by a dlsln- 



174 FEDEBAL KEPOEÏEB. 

terested trustée until the time of the gale ; and the faot that certain of the bond- 
liolders are in possession, to the exclusion of others, ïb a sufflcient reason for 
the appointment of a leceiver, unless the interval between the decree and the 
sale is very brief. 

In Equity. 

John F. D'illon, J. P. Usher, and A. J. Pappleton, for Union Pa- 
cific Eailroad Company. 

Wager Swayne, John Doniphan, and Melville Egleston, for St. Jo- 
seph & Western Eailroad Company. 

Winslow Jadson, for complainant. 

fVoodson, Oreen é Bûmes, for receiver. 

McCkaey, j. In this case a decree of foreclosure will be entered. 
We hâve carefuUy considered the motion for the appointment of a 
receiver. We are entirely satisfied that the St. Joseph & Western 
Eailroad Company is insolvent, and that the property covered by the 
mortgages is inadéquate security for the bonds secured thereby. 
The facts that no interest bas ever been paid, that the debt is over 
$6,000,000, and that the current expenses bave, until recently, about 
equaled the earnings, are sufficient upon this point. We are also 
clearly of the opinion that the road should not remain in the custody 
of the présent management, wbich is in fact, if not in name, the 
Union Pacific Eailway Company, unless a sale under the foreclosure 
can be hàd at an early day. The objection to continuing the prés- 
ent management for any protracted period of time is to be found in 
the fact that to do so vrould be to leave the mortgaged property in the 
hands of one set of bondholders, to be by them managed and con- 
trolied for themselves and another and hostile set of bondholders. The 
proof is satisfactory thatthere are two setsof bondholders, — the ma- 
jority represented by the Union Pacific Eailway Company, and a 
large minority whom that Company does not represent. If a consid- 
érable time must inevitably elapse before a sale can be made and 
confirmed, we think the minority bave a clear right to insist that the 
property shall, in the mean time, be in the hands of a disinterosted 
party. It is not necessary to détermine at présent whether the 
charges of mismanagement made against the Union Pacific Company 
are sustained. It is enough to say that the holders of the minority 
of the bonds hâve a right to insist that the road shall not remain in 
the hands of an interest hostile to them. 

Tbis court is very reluctant to appoint a receiver, and we bave con- 
sidered very carefully the question whether, in justice to the interests 
in hostility to the présent management, we can refuse to do so. If the 
time to elapse before the property can be transferred to a purchaser 
under a decree to be now rendered was not more than 60 or 90 days, 
we should not be willing to appoint a receiver for so short a period, 
and when the argument closed we were under the impression that 
tbere -was nolhing in the way of closing the sale and transfer within 
that period. But upon looking into the statutes of this state we find 



BENEDICT t>. ST.' JOSEPH & W. B. CO. 175 

a provision whieh seema to require in a case of this chartacter a stay 
of exécution for six months. The provision referred to is section 
3983 of the Compiled Laws of Kansas, 1881, and is as foUows: 

"That if the words 'appraisement waived,' or other words of aivnilar import, 
shall be inserted in any deed, mortgage, bond, note, bill, or written contract 
liereafter raade, any court rendering judgment thereon shall order, as part of 
the judgment, that the sameand any process issued thereon shall be enforced, 
and sales of lands and tenements made thereunder without any appraisement 
or valuation made of the property to be sold : provided, that no order of sale 
or exécution shall be issued upon such judgment until the expiration of six 
months from the time of the rendition of said judgment." 

Hère the mortgages contain a waiver of appraisement, so that the 
case seems to fall clearly within the terms of the statute. This stat- 
ute, in our opinion, conféra upon mortgagors a substantial right, and 
if so, it must, we think, be respected and enforced by this court. It 
is the settied practice of this court to foUow this provision of the 
statute in foreclosure cases'. If the question were at ail doubtful we 
ehould not be willing to take the chances of ordering the sale of prop- 
erty of the great value of that nôw in controversy, without foUowing 
the statute and ordering the stay of six months which it requires. 

It is contended that this statute bas no application to a mortgage 
of raiiroad property, and Hammock v. Loan é Trust Co. 105 U. 8. 
86, is cited as supporting this condition. That case undoubtedly 
holds that the statute of Illinois providing for the rédemption of real 
estate sold under a decree of mortgage foreclosure will not be foUowed 
by the fédéral courts of equity in that state in cases of the foreclosure 
of mortgages upon property, real, personal, and mixed, of a raiiroad 
Company. The reason given for this ruling is that the property of 
sach a company, consisting of real estate, personal property, and a 
corporate franchise, must be treàted as a unit, and sold altogether, 
because, to attempt to divide it, and sell the real estate separately 
from the personal estate, would destroy its value. It is held that to 
apply the statute to such a case -would leave the court with "no dis- 
crétion, if the corporation or its judgment creditors so demand, except 
to order the sale of the real estate separately in parcels, when suscepti- 
ble of division and subject to rédemption, leaving the franchises and 
personal property to be sold absolutely and without rédemption. Thus 
one person might become the purehaser of the real estate, another of 
the franchise, and still others of the personal property." Such a re- 
quit, the court held, could not hâve been contemplated by the légis- 
lature. It was shown that among other conséquences one person 
might acquire title to the real estate, another to the personalty, and 
still another to the corporate franchise, each being practically valuô- 
less without the other. It is évident that no such serions results will 
folio w from a compHance with the statute of Kansas now under con- 
sidération. It relates only to tbe time when an exécution or order of 
sale shall issue. It is always within the power of a court of equity, 
in foreclosure cases, to fix a time when a sale of the mortgaged prop- 



176 FSDEBAL BXPOBTEB. 

erty may be had. The complainants in the présent case hâve no ab- 
solute right to an immédiate sale even of the personal property and 
corporate franchises. It is not, therefore, neceasary, in order to follow 
the statute, that we divide and dismember the mortgaged raih-oad 
property. The stay can be ordered as to the entire property and its 
iinity thereby be preserved, and the statute at the same time en- 
forced, and ail rights under it maintained. 

We are bound to foUow the statute, since it is clearly a statute 
regulating the transfer of title to property in the state ; unless, upon 
some such ground as that stated in Haminock v. Loan é Trust Go., we 
can hold that it was not intended to apply to such a case as that now 
before us. McGoon v. Scales, -9 Wall. 23 ; Brine v. Ins. Co. 96 U. S. 
627. Compliance with this statute must postpone the sale until it 
will probably be too late to obtain confirmation at the next June 
terip. If that term is passed a delay of one year is inévitable. For 
reasons already suggested ,we cannot see sur way clear to leave the 
property so long after default ànd decree of foreclosure in the hands 
of one portion of the bondholders, acting in hostility to another por- 
tion having equal equities. 

The net income of the road, from this date, at least, (we décide 
nothing now as to past earnings,) is the property of the bondholders, 
and must be applied to the liquidation of their claims. Whoever con- 
trols the property, and collects and disburses the earnings, from this 
date, must do so as a trustée of the bondholders. The bondholders 
out of possession hâve a right to object to the collection and disburse- 
ment of this increase by other bondholders in possession and hostile 
in interest to them. They hâve a right to insist that a disinterested 
représentative of ail the bondholders shall perform that duty. The 
party to be left in possession and authorized to coUect, care for, and 
pay over the income, being a trustée, and acting in a fiduciary rela- 
tion, should hâve no personal interest in hostility to that of any of 
the cestuis que trust. The amount of the net increase to be divided 
among bondholders will dépend upon the amount of expenditures, 
what improvements and repairs are made, and the like. Many ques- 
tions must arise in the course of administration which should be de- 
eided by an unbiased représentative of ail the interests concerned, or 
by the courte It might be to the interest of the bondholders in pos- 
session to make extensive improvements. To this the bondholders 
out of possession might object. If a receiver is appointed, the court 
can direct and control thèse matters. As at least a year must prob- 
ably elapse before a sale can be made and confirmed, we are con- 
strained, most reluctantly, to appoint a receiver ; but we give notice 
now that no delay that is not unavoidable shall be allowed in closing 
the receivership and delivering the property to the purchaser at the 
foreclosure sale ; and, if possible, the sale shall be made and confirmed, 
and the property turned over, before the end of the year. 

FosTER, J., concurs. 



CHICAGO, M. vte ST. P. BX. CO. V. OXTÏ 01" SABDIiA. 177 

Chicago, M. & St. P. Ry. Co. v. Uity op Sabula and another. 

{Circuit Court, N. D. lowa, E. D. January 3, 1884.) 

RAiiiEOAi) Bridge — Taxation — Laws of Iowa. 

The constitution of Iowa requires the property of ail corporations for pecu- 
niary profit to be taxed in the same way as that of indlviduals. In 1872 
tiie législature passed an act providing that rallroad property wlthin the state 
should be assessed for taxation by a spécial board appointed by the state, and 
not by the local authorities. This statute was held by the courts to be consti- 
tutional, on the ground that it applied to ail railroad property whethep owned 
by corporations or by individuals. Section 10 of the act of 1872 declared that 
no provisions of the act Bhould apply to any railroad bridge across the Missis- 
sippi or Missouri river, but- that such bridges should be taxed as individual 
property. Afthc time the act was passed none of the bridges over those rivers 
were owned by railroad companies, but the companies paid rent or toll for the 
use of them. In 1880 the Chicago, Milwaukee & 8t. Paul Railroad built a 
bridge of its own across the Mississippi at Sabula. lldd, that the nature of the 
property and not the ownership determined whether it fell within section 10 of 
the act, and tliat the bridge was theretore Subject to be taxed by the local tax- 
ing district. 

Bill in Equitj'. Motion for temporary injunction. 

W. J. Knight and J. W. Cary, for complainant. 

Fouke é Lyon, W. C. Gregory, and J. Hilsinger, for défendants. 

Shibas, j. The Mil in this cause sets fort h that the complainant 
is a corporation organized under the laws of the state of Wisconsin, 
and is the owner and lessee of about 5,000 miles of railroad in the 
states of Wisconsin, Illinois, and Iowa; that, among others, it opér- 
âtes a line running from Chicago, Illinois, to Council Bluffs, Iowa, 
which crosses the Mississippi river at the town of Sabula, by means 
of a bridge constructed by complainant under the authority of the act 
of congress, approved April 1, 1872, the said bridge being used solely 
for the passage of the trains of complainant, and being owned solely 
by complainant, the same as other portions of its track. The bi'l 
further allèges that in the years 1881, 1882, and 1883, the gênerai 
manager of complainant made a statement of the number of miles of 
railroad operated by complainant in the state of Iowa, with the num- 
ber of cars, and the amount of earnings, as required by the statute 
of Iowa, and furnished the same to the executive council, which state- 
ment included the length of so mueh of said railroad bridge at Sabula, 
Iowa, as is within the state of Iowa, and that the executive council, as 
required by law, assessed the total valuatlon of complainant's prop- 
erty, including so much of said bridge as is within the state of Iowa, 
and apportioned the same over the entire road of complainant, in ac- 
cordance with the requirements of the statutes of Iowa, regulating 
the assessment and taxation of railroad property. The bill further 
charges that the town of Sabula, and county of Jackson, hâve each 
assessed the bridge in question and levied taxes thereon for the years 
1881, 1882, and 1883, and are threatening to enforce the payment 
v.l9,no.3— 12 



178 FBDEEAL BEPORTEB. 

thereof, by seizure and sale of complainant's property, to prevent 
which the court is asked to issue a temporary injunction. 

The question presented is, therefore, wliether, for the purposes of 
taxation, the bridge, owned and used by complainant across the Mis- 
issippi river at Sabula, lowa, is to be deemed and taken to be a corn- 
ponent part of the entire Une of road owned by complainant, the sarae 
as the bridges across the Des Moines, the lowa, and other streams 
within the state of lowa, and, as such, to be valued and asseased by 
the executive council of the staite, or whether it is to be deemed and 
taken to be a railway bridge within the meaning of section 808 of 
the Code of lowa, and as such to be assessed and taxed the same as 
the property of individuals in the same county; that is, by the local 
assessors and the board of eqaalization. Previous to the year 1872, 
the property of railroads in lowa was taxed through the gross earn- 
ings of the companies, 1 per cent, being levied upon such earnings, 
one-half of which tax was paid to the state, and the ôther half to the 
respective counties through which the roads were operated. In 1872 
an act was passed by the législature, providing for the assessment to 
be made by the census board or executive council. The act required 
the ofûcers of each railroad company to furnish to the census board a 
statement showing the whole number of miles operated by the com- 
pany within the state, and within each county in the state, with a de- 
tailed statement of the number of engines, cars, and other property 
used in operating the railroad within the state, and of the gross earn- 
ings of the entire road and of so much thereof as is situated within 
the state. 

Section 1 of the act déclares it to be the duty of the census board, 
on the first Monday of March in each year, "to assess ail the prop- 
erty of each railroad company in this state excepting the lands, lots, 
and other real estate of a railroad company not used in the opération 
of their respective roads." 

In section 3, it is provided that "the assessment shall be made 
upon the entire road within the state, and shall include the right of 
way, road-bed, bridges, culverts, roUing stock, dépôts, station grounds, 
shops, buildings, gravel-beds, and ail other property, real and Per- 
sonal, exclus! vely used in the opération of said railroad." 

Having asoertained the total valuation, the value per mile is ascer- 
tained by dividing the total value by the number of miles, and this 
valuation, with the number of miles situated in each county, is trans- 
mitted to the board of supeîrvisors of eaeh county, by whom the length 
of the track, and the assessed value of the same within each city, 
town, township, and lesser taxing district within the county is detei-- 
mined. 

By section 10 of the act it is declared that "no provision of this 
act shall be held to apply to any railroad bridge across the Missis- 
sippi or Missouri rivers, but such bridges shall be assessed and taxed 
on the same basis as the property of individuals." 



CHICAGO, M. & BT. P. KY. CO. V. CITY OF BABULA. 179 

When this act of 1872 was adopted there were several bridges 
across the Mississippi and Missouri rivers, but thèse were, save the 
Rock Island bridge, which was owned by the United States, owued by 
bridge companies, by whom the bridges were constructed, and the use 
thereof was leased or otherwise contracted to the raiiroad companies, 
who paid a rental or toU for crossing the same. In 1880 the complain- 
ant constructed its bridge over the Mississippi river at Sabula, for the 
purpose of making a continuons line of road from MUwaukee and Chi- 
cago to Council Bluiïs, The bridge is used only for the passage of the 
cars of the complainant' s trains, and no rental or toU is paid for crossing 
the same by any shipper of freight or passenger upon complainant's 
road. In other words, this bridge forms part of complainant's line 
of railway, the same as any of the other bridges spanning the streams, 
great or small, that are crossed in going from Sabula, on the Missis- 
sippi, to Council Bluffs, on the Missouri. 

On part of complainant it is claimed that as this bridge forms part 
of its continuons line of road, it comes within the enumeration of the 
property to be taxed by the census board, as found in section 3 of 
the act of 1872, and that section 10 does not take it out of this enu- 
meration, that section being intended to cover the bridges across the 
Mississippi and Missouri rivers which are owned by bridge companies, 
and for the use of which the raiiroad companies pay a rental or toU. 
On part of the défendants it is claimed that the provisions of section 
10 must be held applicable to ail bridges across the rivers named, 
which are used for raiiroad purposes in the crossing of trains over the 
same; that it is the use made thereof, and not the ownership, which 
makes the structure a raiiroad bridge within the meaning of tbis sec- 
tion. 

In the case of City of Duhuque v. G., D. é M. B. Co. 47 lowa, 
196, the question of the oonstitutionality of this act of 1872 came 
before the suprême court of lowa, it being claimed that the act was 
in contravention of section 2, art. 8, of the state constitution, which 
provides that "the property of ail corporations for pecuniary profit 
shall be subject to taxation, the same as that of individuals." The 
majority of the court held the act to be constitutional upon the theory 
that the mode of assessment and taxation provided in the act applied 
to ail property of the charâcter named, withaut référence to whether 
it was owned by a corporation, a partnership, or an individual. 
That the act does not provide a spécial manner of assessing the 
property of raiiroad companies as such, but rather of raiiroad prop- 
erty, and that such property would be properly taxable ùnder its pro- 
visions, whether owned by an incorporated company, a partnership, 
or an individual. In other words, the couït holds that the gênerai 
provisions of the act were intended to apply to ail property used for 
raiiroad purposes, and not solely to property owned by raiiroad cor- 
porations, the use, and not the ownership, determining the question 
whether the act was applicable thereto. 



180 FEDERAL REPOBTEB. 

Under this cons-trnctîon of the act it follows tliat^ as a gênerai rule, 
ail property used in the opération of a railroad, no matter whethei 
the same is owned by a corporation or individuals, is to be assessed 
by the census board in the mode pointed eut in the act in question. 
Section 10 of the act, however, provides for an exception to the gên- 
erai rule thus laid down, by enacting that the provisions of the act 
shall not "apply to any railroad bridge across the Mississippi or Mis- 
souri river, but such bridges shall be assessed and taxed on the same 
basis as the property of individuals." 

As already stated, the question at issue between the parties to thèse 
proceedings is whether this section shall be held to apply to ail 
bridges used for railroad purposes, without regard to the ownership 
thereof, or shall be conâued to bridges owned by bridge companies. 
In the latter case, the assessment of the bridge at Sabula would be 
made solely by the census board; but in the former case, the bridge 
would be assessed and taxed the same as any other structure ereoted 
in the town of Sabula. If it be true that the gênerai provisions of 
the act of 1872 are intended to apply to property used in the business 
of raiiroading, without référence to the question of the same being 
owned by a corporation, parinership, or by individuals, then it would 
seem only consistent to hold that the same rule should be applied.in 
construing section 10 of the act, and that therefore, when it is stated 
that "no provision of the act shall apply to any railroad bridge across 
the Mississippi and Missouri rivers, " the meaning is that that par- 
ticular species of railroad property is excepted from the opération of 
the act, without référence to whether it is owned by a railroad corpo- 
ration, a Company, or an individual. Within the meaning of this 
act, a railroad bridge is a structure used for the purpose of the pas- 
sage of locomotives and cars over the same, by means of rails laid 
along the structure. If the structure is used for that purpose, it is a 
railroad bridge, no patter by whom it was built and is owned. 

Under this construction of the act ail bridges over the Mississippi 
and Missouri rivers used for the passage of railway trains will be as- 
sessed and taxed under one and the same statute. If it be held, how- 
ever, that a bridge used solely for the passage of railway trainê is to 
be taxed by the census board, if owned by a railway company, but if 
owned by an individual, is to be assessed and taxed by the local as- 
sessors, then we would hâve différent modes of assessment and taxa- 
tion, applied to similar property, used for a like purpose, and differing 
only in the ownership. It can hardly be supposed that the législa- 
ture intended to enact such a law, in view of the constitutional pro- 
vision already quoted. As an illustration, take the bridge over the 
Mississippi river at Dubnque. It is owned by a bridge company j but 
is used solely for the passage of railway trains over the same. It is 
always spoken of as a railroad bridge, and is assessed and taxed, not 
by the census board, but by the local assessors, the same as other re- 
alty in the city and county of Dubuque. If the Illinois Central Eail- 



CHICAaO, M. & ST. P. BY. 00. V. CITY OP SABULA. 181 

road Company should purchase this bridge from its présent owners, 
and continue the running of their trains over the same, it would then 
constitute a part of the main line of tlae company, Connecting Cairo 
and Chicago with Sioux City, just as the 8abula bridge constitutes 
part of the line of the Chicago, Milwaukee & St. Paul Eailroad Com- 
pany, and, aceording to the contention of complainant, a change in 
the ownership of the bridge in the supposed case would be followed 
by a change in the mode of assessment and taxation of the bridge, al- 
though the structure and the use made thereof remains unchanged. 

It is urged in argument that there is a différence between a bridge 
owned by a company, such as the one at Dubuque, and one owned 
by a railway company, as is the.one at Sabula, in that a toU is charged 
by the bridge company and paid by the railway company for each 
car and passenger that passes over the bridge; whereas, in the latter 
case, the railway company treats the bridge as part of its continuons 
line, and makes no spécial charge for can-ying freight and passengers 
over the same, in distinction from any other part of its line. This 
différence, however, so far as it affects the question under considéra- 
tion, is more apparent than real. In both cases the companies use 
the bridges for the same purpose. In the one case the railway com- 
pany meets the cost of transporting its trains over the river by pay- 
ing for the use of the bridge, while in the other, the company meets 
the cost by paying for the érection of the bridge, and the current ex- 
penses of maintaining it. It is nevertheless true that the structures 
and the uses to which they are put are the same in both instances, 
and the mode of their construction, and the use to which they are 
put, show them to be alike railroad bridges, and no good reason is 
perceived why the modes of assessment and taxation should be varied 
by reason of a différence in the ownership. 

The act of 1872, as construed by the suprême court of lowa, is in- 
tended to provide for the taxation of property used in the opérations 
of railroading, without regard to its ownership by a corporation, a 
partnership, or individuals. If there were no exceptions in the act, 
ail railroad bridges crossing the Mississippi and Missouri rivers, be- 
ing structures used in the opération of railways, would fali within 
the provisions of the act, and in that case would be assessable by the 
census board, and in no other manner. But by section 10 of the act, 
one kind of property used in the opération of railways is specially 
excepted, to-wit, ail railway bridges across the Mississippi and Mis- 
souri rivers, it being declared that "such bridgea shall be assessed 
and taxed on the. same basis as the property of individuals." Under 
this section the census board bave no right or authority to assess any 
railroad bridges spanning the rivera named, because thé first clause 
of the section expressly déclares that no provision of the act shall be 
held applicable to such bridges, and it is only by virtue of the pro- 
visions of this act that the census board hâve the right to assess any 
railroad property for taxation. The first clause, therefore, of section 



182 FEDEBAIi BEFOBTEB. 

10 négatives the claim that railroad bridges over the Mississippi and 
Missouri rivers are assessable by the census board, and the latter 
clause of the section expressly déclares that thèse bridges shall be 
assessed and taxed on the same basis as the property of individuals, 
by which is meant that thèse bridges shall be assessed in the same 
mode as is pursued in regard to other property situated in the same 
taxing district, or, in other words, thèse bridges are to be assessed and 
taxed through the agenoy of the local assessors. 

In considering the construction to be given to the act of 1872, I 
hâve viewed it in the form in which it was passed by the législature, 
and not as it is now found incorporated in the Code of 1873. An ex- 
amination of the Code shows that section 1 of the act of 1872 forms 
section 1317 of the Code, and sections 2, 3, 4, 5, 6, and 11 of the act 
of 1872 are condensed into sections 1318, 1319, 1320, 1321, and 
1322 of the Code. Sections 8 and 10 of the act of .1872 are found 
incorporated together as section 808 of the Gode. The changes thus 
made in the language used, and in the relative positions of thèse sec- 
tions, do not change the légal effect thereof, so far as the question 
under considération is concerned. Thèse sections, 808 and 1318 to 
1322, inclusive, deal with the same subject, and are therefore to be 
construed together. While section 1317 déclares that the executive 
council shall aasess ail the property of each railway corporation in 
the State, "excepting the lands, lots, and other real estate belonging 
thereto not used in the opérations of any railway," yet, section 808 
déclares that "lands, lots, and other real estate belonging to any 
railway companiy not exclu si vely used in the opération of the several 
roads, and ail railway bridges across the Mississippi and Missouri 
rivers, shall be subject to taxation on the samie basis as the property 
of individuals in the several counties where situated." Being in pari 
materia, the two sections must be construed together ; and it foUows 
that the gênerai déclaration in section 1317, that ail the property of 
each railway corporation is to be assessed by the executive council, 
must be held to mean ail property not excepted in some other sec- 
tion of the statutes dealing with the same subject-matter. 

It is a familiar rule of construction that gênerai statements or pro- 
visions in statutes may be restricted or qualified by spécial clauses 
found therein. Therefore, when we find that section 1317 déclares, 
generally, that ail the property of railway companies used in the op- 
ération of their roads is to be taxed by.the executive council, and 
that section 808 provides for the taxation of lands, lots, and other 
property not used in the opération of the roads, and of railroad 
bridges, by the local assessors, we must hold that the spécial excep- 
tions named in section 808 qualifies and restricts the gênerai lan- 
guage used in section 1317. By this rule both sections are harmo- 
nized,; and neither abrogates the other. That this construction effect- 
uâtes the true intent of the législature, is shown by a référence to 
the act of 1872, wherein, as already stated, we find the gênerai de- 



OHIOAGO, M. & ST. P. BT. 00. V. OITY OF SABULA. 183 

claration as now set forth in section 1317 of the Code, but with the 
proviso found in section 10, declaring that the provisions of the act 
should not apply to any railroad bridge across the Mississippi and 
Missouri rivers, To give this section the construction claimed for it 
on behalf of complainant would require the interpolation of the words, 
"unless owned by a railroad corporation," or the équivalent thereof, 
so as to make the section read, "that no provision of this act should 
be held to apply to any railroad bridge across the Mississippi or Mis- 
souri rivers, unless owned by a railroad corporation." 

It is argued that this must hâve been the intent of the législature, 
in effect, because, when the act of 1872 was passed there were no 
bridges across thèse rivers that vrere owned by the railway com- 
panies, and hence that the exception contained in section 10 could 
not bave been intended to apply to such bridges when they were 
afterwards built. The act of 1872 was prospective in its opération. 
It was intended to provide a mode for the taxation of railway prop- 
erty in the future, and was intended to, and does apply to, ail rail- 
ways in the state, whether then built or not. While it may be true 
that in 1872 there were no railway bridges across the Mississippi jor 
Missouri rivers owned by the railroad companies using the same, still 
it carinot be fairly claimed that the improbability of such bridgea be- 
ing built and owned by the railroad companies was so great that it 
must be preaumed that the législature did not contemplate such 
bridges being built, and therefore did not intend to include them 
within the gênerai term of railroad bridges, as found in section 10 of 
the act of 1872. 

It was certainly known to the législature that railroad companies, 
both in lowa and other states, were frequently in the habit of build- 
ing and owning bridges across rivers of very considérable magnitude, 
and that there was no spécial reason why in the future some railway 
Company might not build and own a bridge across the Mississippi. 
It was also undoubtedly known to the législature, when the act of 
1872 was passed, that congress had, in 1866, authorized thè Chicago, 
Burlington & Quincy Kailroad Company to constfuct and maintain a 
railroad bi-idge across the Mississippi river, Connecting its Unes in 
Illinois and lowa, and in the same act had authorized the Winona & 
St. Peter Eailroad Company to construct and maintain a railroad 
bridge across the Mississippi river at Winona, Minnesota, and that 
in 1870 had authorized the St. Joseph & Denver City EailrOad Com- 
pany to construct and maintain a railroad bridge across the Missouri 
river at St. Joseph, Missouri, and in 1871, had authorized the Louisi- 
ana & Missouri Eailroad Company to construct and maintain a rail- 
road bridga,acros3 the Mississippi river at Louisiana, Missouri, and 
in 1872, but a few days before the passage of the act of the législa- 
ture in question, had authorized the Western Union, and Sabula, 
Ackley & Dakota Eailroad companies to construct and maintain a 
railroad bridge across the Mississippi at some point in Clinton or 



18é FEDEBAL REPORTEE. 

Jackson counties, in lowa, — the bridge in question at Sabula being 
afterwards built under the authority of this act of congress, by the 
présent complainant, as the assignée of the rights of said Western 
Union, and Sabula, Ackley & Dakota companies. Under thèse cir- 
cumstances, the claim made in argument, that the législature could 
not bave contemplated the possibility of the construction of any rail- 
road bridges across the Mississippi and Missouri rivers by a railroad 
Company, and hence, did not intend the exception found in section 
10 of the act of 1872 to apply to such bridges, cannot be sustained, 
in view of the broad terms used in that section. 

If the views herein stated are correct, it follows that the executive 
council of the state hâve no authority to include the bridge at Sa- 
bula in the enumeration of the property owned by complainant to be 
assessed by such council. Being a railroad bridge, it is to be as- 
sessed and taxed on the same basis and by the same modes that are 
applicable to other realty situated in the same taxing district ; and, as 
a necessary conséquence, it follows that the application for a tempo- 
rary injunction must be overruled. 

Êecognizing the importance of the question presented in this case, 
I bave given as much time to its investigation as was possible, since 
its submission, but its importance demands that it should not be left 
dépendent upon the conclusions of a single judge reached upon an 
argument upon a motion for a temporary injunction, and it is the 
désire of the court that, upon the final hearing of the case upon its 
merits, the question may be presented to a fuU bench. 



In re Tuno Yeong. 
(District Court, D. California. February 1, 1884.) 

Chinbsb Immigration— Custom-House Cbrtificatkb. 

By the treaty of 1880, Ohinese laborers then in the United States were ac- 
corded the privilège of coming and going at pleasure. The restriction act of 
1882 extends this liberty to ail who arrive before the expiration of 90 days after 
the passage of the act. This law alao requires inooming (Jhinamen to produce 
custom-house certificates. The language of the act is ambiguoua and might be 
80 construed as to require the certiflcate from those who left the coUntry be- 
tween the adoption of the treaty and the passage of the restriction act, but as 
no provisions existed during that period for the issue of such certificates, this 
construction would be clearly répugnant to tlie treaty. The court, therefore 
holds that Chinese laborers who wére in the United States at the date of thé 
treaty, and whodeparted before the act took elïect.areentitled to land without 
producing custom-house certificates. 

Bamk— Mbrchants. 

Only Chinese laborers are excluded. Those who corne to engage, in good 
faith, in mercantile occupations are hdd to be entitled to land, and their Can- 
ton certificates are prima facie évidence of their mercantile character. 

Bamb — Childhen. 

Nothing in the law is held to prevent parents living hère from sending for 
their children who are two young to be classed as laborers. 



IN fiE ÏUNO ïBONa. 185 

On Habeas Corpus. 

S. G. Hilborn, U. S. Atty. for California, and Carroll Cook, Asst. 
U. S. Atty. for California, for the United States. 

Lyman J. Mowry, for the detained. 

MUton Andros, for Williams, Dimond & Co., agents Pacifie Mail 
8. S. Co., who held petitioners. 

HoFFMAN, J. The very great number of cases in which writs of 
habeas corpus bave been sned eut of this court by Chinese persons 
claiming to be illegally restrained of their liberty, and which were of 
necessity summarily investigated and disposed of, bas rendered it 
impossible for the court to deliver a written opinion in eaoh case. 
The évidence in tbe various cases and the rulings of the court bave 
been very imperfectly reported by the press, and the latter, though 
much ctiticised, bave not, it is believed, been tboroughly understood. 
It is deemed proper to set forth in an opinion, as succinctly as may 
be, tbe gênerai nature of thèse cases, of tbe évidence upou which the 
décision of tbe court bas been based, and its rulings upon the more 
important of the questions which bave been presented for its déter- 
mination. 

Tbe applications for discharge from a restraint claimed to be illé- 
gal may be divided into three classes : 

First. Applications on the ground of préviens résidence. By the 
second article of the treaty it is provided that "Chinese laborers now 
in the United States shall be allawed to go and come of their own 
free will and accord, and shall be accorded ail the rights, privilèges, 
immunîties, and exemptions which are accorded to the citizens and 
subjects of the most favored nations." 22 St. 827. By tbe tbird 
section of the law, known as the restriction act, the same privilège is 
indirectly extended to laborers "who shall hâve come into tbe United 
States before the expiration of ninety days next after the passage of 
this act." The date of this treaty is November 17, 1880. The date 
of the passage of the law is May 6, 1882. During this interval large 
numbers of Chinese laborers, who were protected by the treaty, bave 
left the country, of course, unprovided with custom-bouse certificates, 
for there was no law tben existing which required them to obtain 
them or authorized the custom-bouse authorities to furnish them. 

The language of the law is ambiguous, and perhaps admits the 
construction that the laborers who left this country during the inter- 
val I bave mentioned should be required to produce the custom- 
bouse certiûcate provided for in tbe act. It was not doubted by the 
court that if the treaty and the law were irreconcilably conflicting, 
the duty of the court was to obey the requirements of the law, but it 
was considered that no construction should be given to the law which 
would violate the provisions of the treaty, if such construction could 
be avoided. It was therefore held that a Chinese laborer who was 
hère at the date of the treaty, and who left the country before tjjie 
law went into opération, might be admitted without producing a eus- 



186 FEDERAL BEPOBÏER. 

tom-house certificate, whieh it would be impossible for him to obtain, 
and that it was inadmissible, if not indécent, to impute to congress, 
when legislating to carry into effect our treaty with China, the inten- 
tion to deprive laborers of the right to come and go of their own free 
will and accord, which was explicitly recognized and seoured by the 
treaty, by exacting as a condition of its exercise the production of a 
certificate which it was out of their own power to obtain. In re 
Chin A On, 18 Fed. Eep. 606. It was also held that Chinese who 
'were not in the country at the date of the treaty were not embraeed 
within the provisions of the second article, and also that a Chinese 
laborer who, although in the country at the date of the treaty, had 
left after the law went into practical opération, and who neglected to 
procure a certificate, was not entitled to return. As to the sound- 
ness of the last ruling, doubts may be entertained. It is understood 
that the question will shOrtly be submitted to the circuit court. 

If there be error in thèse rulings it is assuredly not in favor of the 
Chinese. The right of laborers who can prove they were in the coun- 
try at the date of the treaty^ and had left before the law went into ef- 
fect, to be allowed to land without the production of a custom-house 
certificate, being thus recognized, the court held that the burden of 
proof was on them, and that satisfactory évidence of the facts would 
be rigorously exaeted. In some cases this évidence was such as to 
establish the facts beyond ail reasonable doubt; as, for instance, the 
former résidence and departure of the petitioner was in one case 
proved by the testimony of the révérend gentlemen at the head of the 
Chinese mission in this city, who swore not only to his personal rec- 
ollection of the fact, but produoed a record of the proceedings of the 
sessions of his church, in which the departure of the petitioner and 
his résignation of the office of deaoon, which he held, and the appoint- 
ment of his sucoessor, are recorded. Thèse records, he testified, were 
in his own handwriting, and were made at the date which they bore. 
In another case a young lady connected with the mission proved the 
departure of the petitioner, (who was a couvert and her pupil,) not 
merely by her own testimony as to the fact, but by the production of 
a religious book which she gave him at the time of his departure, on 
the fly-leaf of which were inscribed, in her own handwriting, and 
signed by herself, some expressions of regard, together with some 
texts of Bcripture. This book, she testified, was handed to him on 
board the vessel at the date of the inscription on thQ ûy-leaf, with the 
injunction to keep it and bring it baok on his return. It was aceord- 
ingly brought baek and produced in court. On proofs such as thèse 
no rational doubt could be entertained, and the petitioners were dis- 
charged. 

But in the large majority of cases proofs hardly less satisfactory 
were exaeted and furnished. The Chinese, on returning to their 
çpuntry, almost invariably procure permits from the companies of 
which they are members, and which are furnished them on payment 



IN EE TUNG ÏEONG. 187 

of their dues. The departure of the members and the payment of 
their dues are recorded in the books of the company. Thèse books 
the court invariably required to be produced. It also appears that, 
in most cases, their savings, aooumulated in this country, are re- 
mitted to China for their account by mercantile firms in this city, 
and als.o that their tickets are, in many cases, purchased through the 
agency of those firms'. The production of the firm books showing 
thèse transactions was, in like manner, required, and they, together 
with the books of the companies, were subjected to the critical scrutiny 
of Mr. Vrooman, the very intelligent, compétent, and entirely reliable 
Chinese interpréter. 

In very many cases ail thèse books were produced in court, and, in 
8ome instances, the évidence they afforded was corroborated by testi- 
mony of white persons in whose employ the petitioner had been, and 
who testified to the time of his departure. It is, of course, possible 
that, in some instances, the court has been deceived, but considering 
that in no case has a person been allowed to land on the plea of pré- 
viens résidence on unsupported Chinese oral testimony, the number 
of such instances cannot be large. The proofs were in ail cases suffi- 
rent to satisfy any candid and unbiased mind. Of the whole num- 
ber thus far discharged by the order of the court, it is believed that 
thote discharged on the grouuds stated constitute nearly one-half. 
In justice to the six companies I should add that their présidents 
hâve spontaneously offered to the court to cause copies of their books, 
with records of departures of their members during the interval I 
hâve mentioned, to be made at their own charges, such copies to be 
verifîed by Mr. Vrooman, by comparison with the original records, 
and then to be deposited with the court. When this is done no means 
will any longer exist of interpolating or adding new names on the 
books of the companies. It will still remain possible for a Chinese 
laborer to assume the name, and personate the character of some one 
whose name appears on the records ; but this mode of déception it 
seems impossible whoUy to prevent. 

Secondly. Applications founded on the productions of Canton certi- 
ficates. The investigation of this class of cases proved exceedingly 
embarrassing to the court, and is attended with difficulties almost 
insuperable. The certificates furnished at Canton by the agent of 
the Chinese government, the law déclares, shall be prima facie évi- 
dence of a right to land. This provision of the law, whatever dis- 
trust might be felt as the reliability of thèse certificates, the court 
could not disregard. The counsel for the petitioner usually presented 
a Canton certificate to the court and rested his case. The district 
attorney was necessarily without the means of disproving the truth 
of the certificate except by such admissions as he might extract from 
the petitioner himself when placed on the stand, or had been gath- 
«red from him upon his examination by the custom-house officiais. 



188 . FEDERAL EEPOBTEB, 

The district attorney was therefore allowed to call the petitioner, 
and cross -examine him in a most searching manner, and contradict, 
if he could, his statements; in short, to treat him as an adverse wit- 
ness called by the opposite side. This method, though somewhat ir- 
regular, seeraed to be the only one to be adopted with any hope of 
arriving at the truth. Another embarrassment under which the 
court labored was the inability to attach any distinct and definite 
signification to the term "merchant;" but, inasmuch as the treaty 
expressly déclares that the only class to be excluded are "laborers," 
and that no other class is within the prohibition of the treaty, it was 
held by the court that the inquiry was not so much whether the per- 
soh was a merchant as whether he was a "laborer," and that that 
inquiry should relate, not to his occupation or status in China, but to 
the occupation in which he was to be engaged in in this country ; as 
the intention and object of the law was to proteet our own laborers 
from the compétition and rivalry of Chinese laborers hère, 

At first sight it would seem that the production of the boolcs of a 
respectable mercantile firm, in which the name of the petitioner was 
inscribed as a partner, would be sufficient to es'tablish his status as a 
merchant. It was soon found, however, that this mode of proof was, 
to a great extent, unreliable ; for, Jirst, the books might be falsified, 
and the entry made to meet the exigencies of the case; and, sec- 
ondly, it appeared that the Chinese are in the habit of placing their 
earnings in stores or mercantile establishments, and in virtue of this 
investment they are admitted to a share of the profits. It might, 
therefore, often happen that a Chinese laborer would appear on the 
books of the company as holding an interest to the amount of a few 
hundred dollars in the concem, while he himself remained a laborer, 
and could in no sensé of the term be called a merchant ox a trader. 
The books above spoken of were in ail cases subjected to a rigid scru- 
tiny, with a viewof detecting interpolations and falsifications. I am 
satisfied that in spite of the efforts of the court, which in almost ail 
cases itself subjected the petitioner to a rigid cross-examination, and, 
in spite of the efforts of the district attorney, some persons hâve 
been admitted on Canton certificates who hâve no right to land, in 
what numbers it is impossible to say, but this resuit seemed to be the 
necessary conséquence of the fact that the law made the certificate 
prima facie évidence of the petitioner's right, and of the difficulty of 
ascertaining the facts. A considérable number of cases were also 
presented to the court, where the petitioner elaimed to be about to 
enter some mercantile establishment in which his brother or his uncle 
or his fatherwas interested. The existence of the establishment was 
usually proved beyond a doubt, but the court was at the mercy of 
oral testimony as to the intended adoption of the petitioner as a part- 
ner. In some instances letters were produced from his relatives in 
this city, addressed to him in Hong Kong, inviting him to corne to 



IN KB TDNO YEONG. 189 

thîs country to be admitted to the business, but tbe genuîneness of 
thèse letters wasoften doubtful, and no obstacle existed totheir man- 
ufacture in this city after the arrivai of the steamer. 

In aeveral cases it appeared by the petitioner's own admission that 
he was a laborer in China; that he came to this country wholly un- 
provided with money; and that he expected to enter the store of his 
brother, or uncie, or other relative, as a porter. In such cases he 
was remanded to the ship; but even in those cases where the peti- 
tioner, or his unele, or other relatives declared that he was to be ad- 
mitted to the business, the court became aware that it might be the 
victim of gross imposition if, on such testimony, any Chinese person 
engaged in mercantile pursuits hère could import as many laborers 
as he might déclare to be brothers, sons, or nephews, and testify that 
he proposed to admit them to the business. In some instances pré- 
tentions of this kind hâve been summarily rejected. In other in- 
stances the court bas felt compelled to discharge the petitioner on a 
prépondérance of proof, though not without serions misgivings as to 
the facts of the case. 

Third. ChiJdren brought to or sent for by their parents or guard- 
ians in this city. In almost ail thèse cases the pétitions were filed 
on bebalf of children of from 10 to 15 years of âge. Their fathers 
or other relatives testified that they had sent for them to be brought 
to the United States with a view of placing them at school to learn 
the English language, and later to adopt them into their business. 
The parents who thus claimed to exercise the natural right to the 
custody and care of their children were, in almost every instance, Chi- 
nese merchants; sometimes of considérable substance, résident hère, 
and entitled, under the provisions of the treaty, to ail the rights, priv- 
ilèges, and immunities of subjects and citizens of the most favored 
nation. Absurdly enough, thèse children, in many instances, were 
provided with Canton certificates, but, though they were in no sensé 
merchants, manyof them being mueh too young to earn their living, 
they were certainly not laborers; and it was not without satisfaction 
that I found there was no requirement of the law which would oblige 
me to deny to a parent the custody of his child, and to send the lat- 
ter back across the océan to the country from which he came. 

The foregoing présents a gênerai, but I think sufficient, statement 
of the varions questions which hâve arisen in thèse cases, and of the 
rulings of the court upon them. If there be error in those rulings I 
am unable to discern it. It will be cheerfuUy corrected when found 
to exist by the judgment of a higher court, or even when pointed out 
by any one who shall first bave taken the pains to aseertain what 
rulings of this court bave actually been, a natural, and one would 
think necessary, preliminary which bas hitherto been largely dis- 
pensed with bythe more véhément of those by whom the action of 
the court bas been assailed. That some persons hâve been suffered 
to land under Canton certificates who were in fact within the pro- 



190 FEDEBAL BBPOBTEB. 

hibîted blasa there is great reason to fear. How this could hâve been 
prevented by the action of any court, honestly and fearlessly discharg- 
ing its duty under the law and the évidence, has not been pointed 
eut. 

By the constitution and laws of the United States, Chinese persons, 
in common with ail others, hâve the right "tp the equal protection of 
the lawB," and this includes the right "to give évidence" in courts. 
A Chinese person is therefore a compétent -witness. To reject bis 
testimony when consistent with itself, and wholly uncontradicted by 
other proofs, on the sole ground that he is a Chinese person, would 
be an évasion, or rather violation, of the constitution and law which 
every one who sets a just value upon the uprightness and independ- 
ence of the judieiary, would deeply déplore. But while aceording to 
Chinese witnesses the right to testify seeured to them by the consti- 
tution and the law, no means of arriving at the truth within the 
power of the court hâve been neglected, and the ingenuity of the dis- 
trict attorney and the court has been taxed in the attempt to elicit 
the truth by minute, rigorous, and protraoted cross-examinations. 
That it has frequently been baffled was naturally to be expected. But 
notwithstanding thèse unavoidable évasions, the practical opérations 
of the act has been by no means unsatisfactory. 

Eetums obtained from the custom-house show that from the fourth 
of August, 1882, to the fifteenth of January, 1884, a period of nearly 
16 montha, there hâve arrived in thia port 3,415 Chinese persons. 
During the same period there hâve departed no less than 17,088. It 
thus appears that not only has the flood of Chinese immigration, with 
w hich we were menaced, been stayed , but a process of depletion has been 
going on which could not be oonsiderably increased without serious dis- 
turbance to the established industries of the state. It is stated that 
the wages of Chinese laborers hâve advanced from $1 to $1.75 per 
diem, — a fact of much signiâcance, if true. It is much to be regretted 
that the notion that the law has, through ita own defects, or the fault 
of the courts, proved practically inoperative, has been so widely and 
persistently disseminated. Such a misapprehension cannot hâve failed 
to be injuriouB to the state by preventing the immigration of white 
persons from the east to replace the Chinese who are departing. 

Another ciroumstance which, though not contemplated bythe law, 
has incidentally attended its enforcement, may be mentioned. The 
costs, the attorneya' feea, and the inconvenience and expense of at- 
tending upon the courts until their cases can be heard, must, in effect, 
hâve imposed upon the Chinese arriving hère charges nearly or quite 
equal to the capitation tax, which in Australia has been found, it is 
said, sufficient to sécure their practical exclusion. On thia point I 
hâve no aocurate information. But the liability to thq charges I havo 
mentioned cannot fail to exercise a strong deterring influence upon 
the lower classes of Chinese laborers. 

In the case at bar the proofs establish beyond a rational doubt 



MISSISSIPPI MILIjS 00. V. BANLETT. 101 

tbat the petitioner was in the United States at the date of the treaty, 
and that he left the United States before the passage of the law whioh 
enabled or required Chinese laborers to, procure. custom-house certifi- 
cates. He is therefore, in my judgment, entitled to be discharged. 



Mississippi Millb Co. v. Ranlbtt and others.* 
{Circuit Uowt, E. D. Louisiana. December, 1883,) 

iNSoiiVENT Laws ov Louisiana. 

Tlie inaolvent laws of Louiaiana do not,bythelTdeclatory force solely, with- 
out any other investiture of title, the possession remaining in the debtor, re- 
move the property of the debtor beyond the reach of a creditor who is a résident 
of another state, and who proceeds in the circuit court. 

Ogden v. ijaunders, 12 Wheat. 213, followed. 

Bank of Tennessee v. Horn, 17 How. 159, distinguished. 

On Eule to Dissolve Attachment. 

E. H. Farrar, for plaintiff. 

The court is asked to let go its jurisdiction over and its possession 
of the defendant's property, and to surrender the same to the state court 
and its appointed officer, to be there and by him administered under 
the state insolvent laws. Neither the state court nor its of&cer, the 
syndic, ever had any actual custody of the property. It was seized 
by the marshal in the hands of the défendants. 

It is contended by the syndic that the cession made by the debtor 
and accepted by the state court ipso/acto vestedthecreditorsand the 
court with the title and the constructive possession of the property, so 
as to place it from that moment in gremio legis, and beyond the juris- 
diction and control of this court. 

The plaintiff contends — 

(1) That the insolvent laws of Louisiana are not operative against 
the plaintiff, who is a citizen of another state, either in whole or in 
part; in other words, that those laws are to be considered as not 
written, either in a state or in a fédéral court. The syndic admits 
that they are inoperative in part, but not as a whole. For instance, 
he admits that they are powerless to stay proceedings in this court. 
He admits that a discharge of the debtor is inoperative hère. But 
he contends that in one respect they are operative, and that one respect 
is that they hâve the effect proprio vigore to transfer to the state tri- 
bunals sole jurisdiction over the property of the insolvent, with the 
sole power to sell and distribute the same among his creditors. 

The authorities repudiate specifically such a distinction. 5 Gill, 
426; 4GiU&J.509; 2 Md. 457; SMd. 1; Poe v. Smc/c, quoted by the 

'Reported by Joseph P. Homor, Esq., of the New Orléans bar. 



192 • FEDERAL BEFOBTEB. 

i 

suprême court of the TJnited States in 1 Wall. 234; Judge Taney's opin- 
ion, 8 Gill. 499; 1 Wall. 234; 4 Wall. 409; 5 La. Ann. 271; 10 La 
Ann. 145; 14 La. Ann. 261; 1 Bald. 301; 14 Pet. 67; 5 Blatchf. 
279 ; 3 N. Y. 500. The effect of such a construction of the law would 
be to coinpel foreign creditors to Bubject themselves voluntarily to tha 
jurisdiction of the state courts, and thus be bound by the insolvent's 
discharge. The state courts would thus hold ail the insolvent's prop- 
erty in constructive possession and say to the foreign creditors : "Corne 
in and take your dividend and haoe your debt discharged or get noth- 
ing." 

(2) If the insolvent laws, qua laws, are inoperative in ail respects as 
against foreign creditors, this case présents nothing but a question 
of the conflict of jurisdiction between two tribunals of concurrent ju- 
risdiction, each having power to bind the goods of the défendant by 
its process. The rule in such cases is that tvkere the parties are not 
the same, nor the cause of action the same in both counts, i. e., to the 
extent of constituting lis pendens, that court holds the property which 
first obtained physical custody of it. In other words, in such cases 
there is no such thing as a constructive possession of property which 
is capable of actual possession — of physical préhension. The term in 
gremio legis is then, and under such circumstances, équivalent to in 
manu ministres curice. Payne v. Drewe, 4 East, 523; Taylor v. Gar- 
ryl, 20 How. 594; Freeman v. Howe, 24 How. 450; Wilmer y. Atlan- 
tic, etc., Air-Une B. R, 2 Woods, 409, opinion of Judges Bbadlet and 
Ebskine. 

It is clear that this court will not surrender its possession of and 
jurisdiction over the property of the défendant to a syndic, or officer of 
a state court, who had no légal existence when the jurisdiction of this 
court attached. That the property seized belongs to the défendant, 
notwithstanding the cession, is incontestable. The Code so déclares 
in the most emphatic terms. Articles 2171, 2178, ai 80, 2182. Thèse 
articles of the Code, and the apparently conflicting section of the suh- 
ordinate Revised Statutes, which déclares that the cession "fully vests 
the property in the creditors," hâve been interpreted authoritatively. 
Smalley v. Creditors, 3 La. Ann. 387; Nouvet v. Bollinger, 15 La. 
Ann. 2t)3. The contrary décision — the mère dictum of Judge Portbb, 
unbacked by the quotation of authority — in Schroeder''s Syndics v. Nich- 
olson, 2 La. 354, is directly in the teeth of the law. The décision of 
Bank of Tenn. v. Horn, 17 How. 517, is equally without foundation. 
The authority of that case is further weakened by the fact that the 
seizure was made after the appointment and confirmation of the syn- 
dic, and after his actual custody of the property had begun. 

The case of Crapo v. Kelly, 16 Wall. 610, does not apply to this 
case, because the assignment made by the court under the Massachu- 
setts insolvent law transferred the absolute title oî the property to the 
assignée, and also operated as a tradition and delivery of the prop- 
erty to such assignée. Under the law of Louisiana the cessio bonorurn 



MISSISSIPPI MILLS 00. V. BASLETT. 193 

leaves the title in the insolvent, and simply transfers to the creditors 
a right to administer and sell the property ceded under the orders of 
this court ; and it is admitted that if, under the insolvent law of 
Louisiana, the cessio bonorum divested the title of the insolvent, 
vested such title ip«o /acte in the syndic, andoperated a tradition and 
delivery of the property into the possession of such officer, then there 
would be an end of their attachment. But, inasmuch as suob cessio 
bonorum is simply équivalent to an application to appoint a receiver 
to administer the property of the insolvent under the orders of the 
court for the benefit of his creditors, — the absolute title remaining ail 
the time in the insolvent, coupled with the express right to terminate 
the whole proeeeding at any time by coming forward and paying the 
debts and costs of administration, — this court's rights to lay its 
hands on the property of the debtor cannot be ousted, unless by the 
previous actual possession of such property by a state court through 
its duly-appointed officer. 

Thomas L. Bayne and George Denegre, for provisional syndic. 

The surrender made by the insolvents under the laws of the state 
of Louisiana, and the acceptance of the same by the court under a 
judgment duly signed, vested the property in the creditors, and- gave 
to the state court and the creditors complète control of said assets, 
and they were not subject to seizure by process from any other court, 
state or fédéral. Such is the language of the law : 

Eev. St. § 1791. "From and after suoh cession and acceptanoe ail tlie prop- 
erty of the insolvent debtor mentioTied in the sohedule shall befully vested in 
his creditors. " 

No other conveyance is ever made by the insolvents than that which 
is made at the time of the cession and acceptance as above. 

The décisions of the suprême court of the state of Louisiana are 
uniform in declaring that ail of the property of the insolvents passes 
to the creditors for the payment of their debts, at the moment of the 
cession and acceptance by the court, by mère opération of the law, 
proprio vigore. Schroeder's Syndics v. Nicholson, 2 La. 350. "By the 
laws of Louisiana, when an insolvent debtor makes a cession of his 
goods and they accept it, there is a traûsf er of his property, — it ceases 
to behisandbecomestheirs;" or, as stated in Orr v. Lisso, 33 La. Ann. 
478, "the final surrender of the property and the regular acceptance 
of the cession vested the title in the creditors." This is reiterated in 
ail of the intervening cases. 4 La. 83 ; 7 La. 62; 12 La. Ann. 182 ; 
4 La. Ann. 493; 19 La. Ann. 497; 23 La. Ann. 478; 6 La. Ann. 
391. 

The acceptance of the cession by the judge is "a judgment which 
can only be set aside by an action of nullity." Sterling v. Sterling, 34 
La. Ann. 1029; 14 La'. Ann. 424; 17 La. Ann. 88; 7 How. 624; 16 
N. B. E. 303. 

The law of Louisiana thus providing for the cession of the prop- 
erty by insolvents to ail of their creditors, has been declared by the 
v.l9,no.3— 13 



194: . FEDEEAL, EEEOETBB. 

Buprôme court of the United States tobe constitutional, and this law, 
and its interprétation by the state courts, is declared to be a rule of 
property, effectuai against ail parties and in every forum. Bank of 
Tennessee v. Horn, 17 How. 159. And in this case it is said "that the 
surrender in the Second district : court of New Orléans divested Con- 
reyof ail hisrights ofproperty.and vested thèse in the creditors; * * * 
the right and title had, by opération of the law of the, state, vested in 
the creditors." In Crapo v. Kelly, 16 Wall. 610, this is declared to 
be the effect of the insolvent law of Massachusetts, and Mr. Justice 
Beadley, who dissents on the ground that the property referred to 
was ïiot within the limits of the state, says, (page 643 :) 

"In; the case now decided the force and effect of the judicial assigiiment 
would hâve been regarded as cgnclusive in Massachusetts, had the ship, the 
subject of it, returned there, and become subjected to its local jurisdiction; 
* * * I do not dény'that, if the property had beeu within Massachusetts 
jurisdiétion wheii the assigninent paased; -thé property would hâve beeu ipso 
facto transferred to the assignée by the laws of ilassachusetts proprio vigore,, 
and, being actually transfei-red and vested, would hâve been respected the 
world over.» Tonley v. Lavender, 21 Wall. 379; 14 How. 34, 394; 8 How. 
107; 3 Pet. '303; 10 Wheat. 165; 5 How. 72; 18 How, 502, 507; 2 Wall. 216; 
91 U. S. 49t; 3 Woods, 720; 93 U. S. 201;Levi v. Columbia Ins. Co. 1 Fed. 
Rep. 209; TorrensY. Hammond, 10 FEDi Réf. 900. 

Under the state insolvent laWs ail Writs of attachaient are dissolved 
by thé cession made by the debtor. Hennen, Dig. werte, "Attach- 
ment, XL" p. 148, No. 1; 12 Martin, 32; 1 La. Ann. 39; 3 Eob. 
457; 6 La. Xnn. 444. Section 933 of the Eevised Statutes déclares : 

"An attachment of property upon process instituted in any court of the 
United States to satisfy such judgtnent as may be recovered by the plaintiff 
thereon, except in the cases mentioned in the precediug nine sections, shall 
be dissolved when any contingency occurs by which, according to the law 
of the state where said court is held, such attachment would be dissolved in 
the court of said state." Mather v. Neshit, 13 Fed. Rep. 872. 

The cession was made by the inaolvents and accepted by the court 
on the twenty-seventh of November; the attachment issued and seizure 
was made next day. The property had vested in the creditors and 
was not subject to seizure, and possession should be given to the syn- 
dic, their légal représentative, and the attachrnent should be dissolved, 
as provided by section 933 of the Eevised Statutes. The attachment 
issued by virtue of a state law, and falls under the above section of 
the law of the United States. 

; BiLLiNGS, J. The facts necessary to be considered are thèse : 
Messrs. Eanlett &.Go., the défendants, had made a cessio bononm xm- 
der the insolvent law of the state of Louisiana, which had been ac- 
cepted by the court before which the proceeding was pending, but no 
syndic had been appointed and no possession taken in behalf of the 
creditors, , At this stage of the proceeding the plaintilï, who is a cit- 
izen of the state of Mississippi, sued out a writ of attachment in the 
fiircuit court of the United States in this state, and under his writ 
the marshal seized the property, the same being in the possession of. 



MISSISSIPPI. MILIS .00. ». BANLETT. 19S 

the défendants. The matter cornes up On a motion of the syndic tt 
release the seizur^, on the ground that, inasmuoh as the cession han 
been accepted by the court, according to the provisions of the insoh-- 
ent law of the state, the property had vested in the oreditors. Those 
provisions are as follows: "From and after such cession and ac^ 
«eptance ail the property of the insolvent debtor mentioned in the 
schedule shall fuïly vest in his creditors." Eev. St. La. § 1791. So 
fàr as actnal possession affects the question, the facts are with the 
plaintiff, for the marshal f ound the property in the possession of the 
défendant, seized it and holds it. The case is, thereforè, free from 
any embarrassment arising from any possible disputed possession be- 
tween the ofi&cers of this court and the court in which the insolvent 
case is pending. It is to be f urther observed that the law of the 
state of Louisiana, exclusive ôf the insolvent law of the state, rè- 
quires tradition or delivery of personal property in order to transfer 
title. So that the sole point to be deeided is whether the insolvent 
law, in and of itself, without any other investiture of title, the posses- 
sion remaining in the debtor, removes the property beyond the reach 
of a creditor who is a citizen of anothgr state. If that law opérâtes 
upon such a creditor, the property, by the court's mère acceptance of 
the cession, was completely vested, though no possession had been 
taken, and must be surrendered to the syndic now appointed; to be 
administered under the insolvent law; if, on the other hand, that law 
is not operative upon such a creditor, there is nothing to prevent, and 
it becomes a manifest duty that this court should hold thé property 
seized, and subject it to the payment of the debt of the attaching 
creditor. ♦ 

The cases upon the gênerai subject are numerous, but for the most 
part they deal with questions remote from the one before the court. 
The solution of this question stands with but little advance since the 
décision of Ogden v. Sauniers, 12 Wheat. 213, which as late &s Baldn 
win V. Haie, 1 Wall. 22S, after an elaborate discussion, was, so far 
as relates to this matter, reiterated without qualification. The prin- 
ciple stated in both thèse cases, and in the last recognized as un- 
qualified and unquestioned law, is: "When, in the exercise of their 
power to enact insolvent laws, states pass beyond their own limits 
and the rights of their own citizens, and act upon the rights of citi- 
zens of other states, there arises a conflict of sovereign power and a 
collision with the judicial powers granted to the United States, which 
render the exercise of such a power incompatible with the rights oî 
other states and with the constitution of the United States." I am 
unable to perceive how there should be doubt or hésitation in deduo- 
ing the law of this case from the principle thus enunoiated and ad- 
hered to. If any attempt on thé part of a state "to act upon the 
rights of a foreign citizen be so opposed to the sovereign and th« jij- 
dicial powers of the United States as to be incompatible with tîie 
rights of other states and with the constitution of the United States/' 



196 fSDEBAIi BEFOBTEB. 

then it must follow that, so long as the insolvent court relies exclu- 
sively upon the worda of the insolvent law, at any stage of its pro- 
cédure, short of actual, physical possession, or such a state of facts 
as by the général law of the state are tantamount to physical pos- 
session, as against the process of the United States court, issued at 
the instance of a foreign créditer, the title of the syndic must be 
migatory. 

Mr. Justice Woodbuby, in Towne v. Smith, 1 Wood. & M. 136, 
with référence to this very question, says : "The actual seizure of the 
property of the bankrupt in another govemment or country, before 
his assignées take possession of it, créâtes a lien upon it in favor of 
a foreign creditor, whioh will be sustained;" and again upon the 
same page, says: The circuit court of the United States, sitting in 
Massachusetts, "is as différent a tribunal from those belonging to 
Massachusetts alone as the court of any other state." Nor do we 
obtain any qualification of this rigid doctrine from the fédéral stat- 
ute, that the rules of property in the several states control the courts 
of the United States sitting tberein, for that statute contains an ex- 
ception which removes this whole question from its dominion. That 
statute is as follows: "The laws of the several states, except when 
the constitution, treaties, or statutes of the United States otherwise re- 
quire or provide, shall be regarded as rules of décision in trials at 
common law in the courts of the United States where they apply." 
Eev. St. § 721. Indeed, the statute, by its exception, déclares that 
ail state laws — be they insolvent laws, or laws prescribing rules of 
property, or of any other character — cease to be binding upon the 
fédéral courts whenever the constitution of the United States other- 
wise requires or provides. 

The leading cases hâve arisen where only the validity of the debt- 
or's discharge was involved. But the conclusion that until the state 
insolvent court bas possession, its proceedings cannot aftect the non- 
resident creditor, follows as conclusively with respect to exemption 
from process, or respite, or stay, or any intermediate action. In Hay- 
del V. Girod, 10 Pet. 283, where the plaintiff, a résident creditor, had 
not been notified, and a respite and stay had been granted and were 
pleaded, the court say: "The plaintiff was in no sensé made a party 
to the proceedings, and, consequently, his rights are in no respect af- 
fected by them." A fortiori must this be true where, as hère, with 
référence to a party, the court had no authority to decree or proceed ; 
for in Gilinan y. Lockwood, 4 Wall. 411, the court say, "unless in 
cases where a citizen of another state voluntarily becomes a party 
tothe proceedings, the state tribunal bas no jurisdiction of the case." 

Many cases bave been cited by the counsel for the défendant, but 
they cannot avail to shake the settled law as thus explioitly declared 
by the suprême tribunal of the land. 

There are numerous cases where thô settlement of the estâtes oî 
insolvent deceased persons has, by the same tribunal, been declared 



mSSISSIFPI HILLS 00. V. BAMLETT. 197 

to be exclusively vested in the appropriate state courts. It seems to 
me thia large class of cases only affirm what is the universal law, 
and necessarily so, that the estâtes of the dead must be settled by 
the local mortuary courts, and that this is equally trne whether tbey 
be Suivent or insolvent. The jurisdiction in thés» cases springs not 
from the insolvency, but from the death, and the law which régulâtes 
is not an insolvent law, but a law controlling the administration of 
successions. 

The case of Banh of Tennessee v. Horn, 17 How. 159, 1 hâve care- 
fully considered. The point presented and decided seems to hâve 
been that a misdescription of real estate in the schedule of the insolv- 
ent debtor did not prevent its passing to the creditors by the cession. 
The contest was between a purchaser from the syndic under a sale 
ordered by the court of insolvency and those claiming title by a pur- 
chase under a judgment rendered in the United States circuit court 
after the cession. When we observe that the chief justice in giving 
the opinion of the court says, "the validity of the insolvent law of 
Louisiana has been fully recognized in the case of Peale v. Phipps, 
14 How. 368," and further, that that case is placed upon the ground 
(page 374) that "while the property remained in the custody and pos- 
session of one court no other court had the right to interfère with 
it," it seems that it should be inferred that in the case of Bank v. 
Horn the syndic had possession at the time of the rendition of the 
judgment in the circuit court, and prior to any attempt to seize under it. 

In. the case presented hère the plaintiff is in possession, and both 
as respects title and possession his right is absolu te but for a right 
which, if it exists at ail, cornes from the inhérent force of a state insol- 
vent law, which, unaccompanied by possession, is, as to this plaintiff, 
like an extraterritorial bankrupt or insolvent law, and according to 
the summary of authorities in Booth v. Clark, 17 How. 322, (decided 
at the same term with the case of Horn v. Bank, supra,) gives to the 
foreign assignée no title as against local creditors who attach. The 
constitution of the United States opérâtes within as well as without 
the state which enacts insolvent laws. No state laws in conflict 
with it can be rules of property. The doctrine of comity between 
the fédéral and state courts has been constantly extending in récog- 
nition and clear and rigid enforcement ; but the rules of law as ex- 
pounded in Ogden v. Saunders, supra, are, as it seems to me, un^ 
changed. In accordance with that case, in this forum at least, 
the possession of a foreign citizen under an atttachment must pre- 
vail against the syndic who claims merely by the declaratory force of 
a state insolvent law. A mère déclaration in a statute, which is by 
the settled adjudications inoperative against a party domieiled as is 
the plaintiff, cannot oust this court of administration of the prop- 
erty, which is, consistently with ail the rules of judicial comity, in 
its possession. 

The rule must be denied. 



198 ÏXDEBAIi BBPOBTEB. 

Ktjfbke V. Kbhlob;* 

( Circuit Court, E. V. Miasouri. December 3, 1883.) 

* 
CoMMiBsioif Merohants — Advancbs — Bill of Ladino — Instjbanob. 

The consignée of goods, who advànces on the faith of the bill of lading and 
Insurance certiflcate attached, can recover from the shipper an amoiint suffl- 
cient to reimburse him for the advance, if (hcre should be an error in the bill 
of lading and Insurance certiflcate, by which the Insurance could not be recov- 
ered for goods lost in transit. 

At Law. Motion for judgment non ohstante. 

This is a suit for a balance due plaintiff on account of a bill of ex- 
change drawn on him by défendant and duly paid at maturity. The 
case was tried before a .l'ury. The facts appeared from the évidence 
to be substantially as foUows : On the twenty-eighth of November, 
1879, in compliance with a promise previously made to an agent of 
plaintiËf, the défendant consigned to plaintiff at Glasgow, Scotland, 
for sale on commission, 750 barrels of flour, — 500 branded "Yours, 
Truly," and 250 "Olive Branoh." The carrier from St. Louis to 
Glasgow was the Merehants' Dispatch Transportation Company, which, 
on thetwenty-sixthof November, 1879, issued its bill of lading, agree- 
ing to carry the flour from St. Louis to New York by rail, and from 
New York to Glasgow by sailing vessel. At the time the bill of 
lading waa issued, the n.ame of the particular sailing vessel which 
was to carry the flour from New York was not known to the agent of 
the Merehants' Dispatch Transportation Company in St. Louis, and 
it was accordingly agreed between it and the défendant that the car- 
rier should notify the défendant, through its agent at St. Louis, by 
wire from New York, of thename of the vessel, so that theconsignor 
could insure the flour on board such vessel. The bill of lading re- 
quired that the flour be delivered to the défendant in good order, 
and also contained the words, "Notify Anton Kufeke." Accordingly, 
on the second day of December, 1879, the consignor was notifled by 
the agent of the carrier at St. Louis that the flour would go from 
New York to Glasgow by the bark Cyprès, a sailing vessel, and that 
on the strength of that information the consignor on that day insured 
the flour for the voyage as on board that vessel. The défendant 
thereupon advised the plaintiff by letter, dated December 5, 1878, of 
this consignment, and of the name of the vessel by which the flour 
would he shipped from New York to Glasgow, and that he had drawn 
on him at 60 days' sight, with bill of lading and Insurance certiflcate 
attached, for £600. The défendant did draw as stated, the draft be- 
ing dated November 28, 1878, indorsing the bill of lading and Insur- 
ance certiflcate. The letter of advice, and also the draft and at- 
tached documents, reached Glasgow in due time, so that on the 

iReported by Benj. F. Rex, Esq., of the St. Louis har. 



EUFëEB V. EEHLOB. 199 

eighteenth of December, 1878, the plaintifif accepted the draft, of 
which he duly advised the défendant. On the second of January 
the bark Cyprès arrived at the port of Glasgow, but had none of the 
fiour on board. There was no évidence tfaat plaintiiï or défendant 
knew of the arrivai before May 15, 1879. Plaintiff notified défend- 
ant of the above fact by a letter dated May 15, 1879. On the ais- 
teenth of January, 1879, the steamer State of Georgia arrived at 
Glasgow, having on board 259 barrela of the flour, of which the de- 
fendant had no knowledge. Thereupon the plaintiff paid said draft 
and received the flour then on board isaid steamer, but did not notify 
défendant of its arrivai by that vessel. On the thirtieth of «anuary, 
1879, the plaintiff learned in Glasgow that the steamer Zanzibar, 
having on board the remainder of the flour, was overdue, and on that 
day he cabled the fact to défendant, and asked him to insure for the 
benefit of ail conoerned. The Zanzibar sailed from New York about 
January 14, 1879. This was the first information that défendant had 
that the flour did not'go forward by the Cyprès. Défendant endeavored 
to insure, as requested by the plaintiff, but was unable to do so, as 
the Zanzibar was already reported lost. The Zanzibar was lost, as 
reported, and the balance of the flour was never delivered to plain- 
tiff. Défendant gave no permission to ship by any other vessel than 
the Cyprès, and did not know of the shipment by anothèr vessel un- 
til he received the cable dispatch from the plaintiff of January 30, 
1879. 

The court directed a verdict for plaintiff, subject to a motion for 
judgment non obstante. The def«ndant now moves for a judgment 
non obstante. 

H. E. Mills, for plaintiff. 

George M. Stewart, for défendant. 

Treat, J. As intimated at the trial, there is nothing in the facts 
shown to take the case out of the gênerai rule. The authorities cited 
in def endant's brief establish no doctrine, whereby défendant could 
be relieved of bis liability to plaintiff. The common carrier is liable 
to the défendant, and whether the plaintiff could, under some contin- 
gencies, bave maintained an action against the carrier does not change 
the aspects of this case. Primarily, the défendant was bound to 
respond to the plaintiff ; and the plaintiff had the right to rely on 
the accuraoy of the papers forwarded by défendant on the faith of 
which the draft was accepted and paid. What was done by plaintiff 
on receipt of some portion of the shipment in the Georgia, and in 
cabling news concerning the Zanzibar, did not change the obligations 
or contract, but was merely for defendant's beneflt, of which he can- 
not be heard to complain. The gênerai rule is based on sound prin- 
ciples and should be enforced. Eesort to commercial paper in foreign 
ordomestic commerce carries there with what the law-merchant exacts. 
A biU of exchange, with bill of lading and an iusuranee certificate 
ftnnexed, does not oompel the aceeptor of th€ bïU to rely for reim- 



200 FEDEBAL BEPOBTEB. 

bursement on false bills of lading and certificateg without recourse 
upon the drawer. True, the accepter having received the bill of lad- 
ing and aoting as consignée, must do what the rules of agency re- 
quire as to the receipt and sale of the shipments actually made as des- 
ignated. In this case the bill of lading did not cover the shipment, 
and as to the oertificate of insurance, the plaintiff had nothing to do, 
— that is, he was not bound to insure,— for the flour went forward on 
defendant's account, to whom, in the event of loss, the insurance 
money would hâve gone, or been applied on his draft. 

The motion is overruled, and judgaient will be entered according 
to the verdict. 



KeOPFF V. PoTH. 

(Oireuit Court, D. New Jersey. Deoember 11, 1883.) 

Death of Plaintiff — Rav. St. } 953 — Foubign Administbatok CouTiNumo 
SniT. 

Under the provisions of section 955 of the Ilevîsed Btatutes of the United 
States, when an alien sues in the circuit court and dies, the suit cannot be con- 
tinued to final judgment by his exécuter or administra tor, unless such exécu- 
ter or administrator bas taken out letters testamentary or of administration on 
the estate in the statè where the suit is brought. 

In Debt. • 

A. Q. Keasbey et Sons, for plaintilî. 

Sheppard é Lentz, for défendant. 

Nixon, J. This is a personal action at law, brought by an alien 
against a citizen. On October 26, 1883, the death of the plaintiff 
was suggested upon the record, and an order entered that the suit 
proceed to final judgment in the name of his executor. A motion is 
now made to vacate said order as improvidently entered. 

The executor of the deceased plaintiff is an alien, residing in the 
same country as the testator, to-wit, at Nordhausen, in the empire 
of Germany. There hâve been no letters testamentary or of admin- 
istration on the estate taken out in New Jersey. It is well settled 
that such a person, whether administrator or executor, cannot begin 
a suit in the courts of the United States to enforce an obligation due 
his intestate or testator. See Dixon's Ex'rs v. Ramsay's Ex'rs, 3 
Cranch, 319; Noonan v. Braàley, 9 Wall. 394. The counsel for the 
plaintiff concèdes this, but claims that, under the provisions of sec- 
tion 955 of the Eevised Statutes, when an alien sues and dies the 
suit may be continued to final judgment by his executor, whether for- 
eign or résident. That section, which is section 31 of the judiciary 
act, was doubtless enacted to avoid the inconvenience of the com- 
mon-law rule that ail actions, personal as well as real, abated by the 
death of either of 'the parties before judgment. It expressly saves 



EGGLESTON V. OBNTENNIAL MUT. L. ASs'n OF IOWA. 201 

ail Personal suits from abatement in cases when the cause of action 
survives by law. But it would be anomalous to allow a person to 
continue a suit which he is not authorized to begin. It is a more 
reasonable construction of the section to hold that when congress au- 
thorized the continuance of a pending suit in the name of the exécu- 
ter or administrator, it meant to refer to an exécuter or administra- 
tor who was compétent to begin the action. 

The présent suit is saved from abatement by the statute. The 
death of the alien plaintiff suspends further proceedings until an- 
other lawful plaintiff be substituted. The order is vacated, but the 
Personal représentative of the plaintiff is allowed a reasonable time, 
to-wit, 60 days, in which to procure in New Jersey letters testament- 
ary or of administration. 



Egoleston and others v. Centbnnial Mut. h. Abs'n of Iowa.' 

(Uireuit Court, E. D. Missouri. December 3, 1883.) 

iNSaKANCE— MUTTJAIi ASSOCIATION POLICT — CONTRACT AS TO ENFOHCEMENT. 

Where a clause of a policy issiied by a mutual insurance company provided 
that the only action maintainable on the policy should be to compel the asso- 
ciation to levy the assessraents agreed upon, and that if a levy were ordered by 
the court the association should only be liable for the sum coUected, lield that 
the provision was valid, and that the only mode of enforcing the policy in the 
flrst instance was by proceedings in chancery. 

Lueders' Ex'r v. Ha/rtford L. * A. Ins. Co. 12 Fed. Rep. 465, distinguished. 

At Law. Suit upon a policy of insurance issued by défendant- 
Motion to strike out that part of defendant's answer in which it 
pleads in bar of the action the foUowing clause of the policy sued on, 
viz. : "The only action maintainable on this policy shall be to compel 
the association to levy the assessments herein agreed upon, and if a 
levy is ordered by the court, the association shall be liable under this 
policy only for the sum coUected under an assessment so made." 
The other material facts are sufEciently stated in the opinion. For 
opinion on demurrer to the pétition see 18 Fbd. Ebp. 14. 

George. D. Reynolds, for plaintiff s. 

(1) The clause set up as a bar is void, as an attempt to oust the 
courts of law of ail jurisdiction, and as an attempt by contract to 
control the courts of law in applying a remedy for the breach of the 
obligations of the contract. Cooley, ConSt. Lim. (3d. Ed.) §§ 288, 
361 ; 1 Story, Eq. Jur. § 670; 2 Story, Eq. Jor. § 1457; Stephenson v. 
Piscataqua F. é M. Ins. Co. 54 Me. 56, and cases there cited ; Schol- 
lenberger v. Phœnix Ins. Co. 6 Eeporter, 43 ; Yeoman» t. Girard F. & 

•Reported by Benj. F. Rex, Esq., of the St. Louis bar. 



202 PEDEEAL EEPORTBB. 

M. Ins. Co. 5 Ins. Law J. 858; Smith v. Lloyd, 26 Beav. 507; Trott 
V. City Ins. Co. 1 Cliff. 439; Millaadon v. Atlantic Ins. Co. 8 La. 557; 
Nute y. Hamilton Mut. Ins. Co. 6 Gray, 174 ; Cobb v. New Eng. M. M. 
Ins. Co. Id. 192 ; Amesbury v. Bowditch M. F. Ins. Co. Id. 596 ; Allegro 
V. Ins. Co. 6 Har. & J. (Md.) 413. 

(2) The condition at most is a collatéral condition, not a condition 
précèdent. Cases supra; also, U. S. v. Robeson, 9 Pet. 326 ; Dawsony. 
Fitzgerald, 24 W. E. 773, (also 3 Cent. Law J. 477;) Scott v. Avery, 
5 H. L. Cas. 811. 

(3) A plea setting up an agreement to arbitra te is bad in an action 
at law. Tscheider v. Biddle, 4 Dill. 55. See, further, Liverpool, L. 
éG. Ins. Co.v. Creighton, 51 Ga. 95; Kill v. HoUister, 1 "Wils. 129; 
Goldstone v. Osborn, 2 Car. & P. 550; Râper v. Lendon, 28 Law J. 
Q. B, 260; Alexander v. Campbell, 41 Law. J. Ch. 478; Robinson v. 
George's Ins. Co. 17 Me. 131; Tobey v. Co. of Bristol, 3 Story, G. C. 
800. 

(4) In a case like this, where the company refuses to make an as- 
sessment, the amount of recovery is the maximum amount named in 
the certificate. Lueders' Ex'r v. Hartford L. de A. Ins. Co. 12 Fed. 
Eep. 471. And the averments are made in the aijaended pétition 
sufficiently distinct to bring it within the rule announced in Curtis v. 
M. B. L. Co. 48 Conn. 98. 

(6) The prospectus is a part of the policy and both are to be construed 
together. Biiss, Life Ins. §§ 397-400; May, Ins. §§ 355, 356; Ruse 
Y. Mut. L. Ins. Co. 24 N. Y. 653; Cent. Ry. Co. v. Kisch, L. R. 2 H. 
L. Cas. 99; Wheelton v. Hardisty, 8 El. & Bl. 282; Wood v. Dwarris, 
llExeb. 493. , 

Davis é Davis and Newman d Blake, for défendant. 

Teeat, j. a motion bas been filed to strike out parts of the answer 
to this amended pétition, which motion raises the same question here- 
tofore decided, varied, it is contended, by new averments. It is 
stated in the amended pétition that défendant "guarantied" payment 
of the maximum stated in the policy; but there is nothing to sustain 
such an allégation; indeed, the whole ténor and spope of the. policy 
is to the contrary. It is further averred that the défendant refused, 
as agreed, to make, the stipulated assessments on policy-holders, 
whereby it Ipecame liable for the maximum amount, . despite the posi- 
tive terms of the contract ; and liable also, in an action at la\^, regard- 
less of the express agreement that resort should be had only to pro- 
ceedings in equity to enforce assessments. In deoiding the demurrer 
to the original pétition, leaye was given to the plaintiff to file a bill 
to compel an assessment ; but, instead of filing a bill for that purpose, 
he bas filed anamended pétition at law, which leayes the case just as 
it was before, so far as légal propositions are involyed. The contract 
of insurance was pecyliar, as under its terms the respective persons 
insured were bound to contribute to death losses according to the 
shifting provisions mentioned ; and the défendant bound itself merely 



EGGLBSTON V. OENTENNiAL MÙTj t. ASS'N OF 10 WA. 203 

to pay over what should be assessed ând colléoted — nothing làofer, 
and to make it certain and definite that its obligation was not to ex^ 
tend further, it -was expressly agreed that it should be liable only to 
the stipulated proceedings in equity. 

It is contended that the restrictive clause as to the remedy is void, 
and many cases are cited in support thereof, supposed to be analo- 
gouB. That question was previously before this court and involved in 
its décision on the demurrer, wherein an adverse conclusion was 
reached; from which there in no reason to départ. Indeed, if the 
subject were driven to a fuU analysis it would appear that a différent 
conclusion would involve many strange absurdities. The parties 
agreed, one with the other, to many rules for determining their re- 
spective obligations and liabilities, dépendent on the number of per- 
sons assured, the amounts for which they were respectively assured, 
eic, and to make sure astothe obligations of the défendant, and the 
means of enforcing the samein the only just, feasible, and équitable 
manner, stipulated that only a suit in equity should be resorted to. 
How else could it be ascertained what was done to thè plaintiffs ? An 
assessment must be made, dépendent on the shifting conditions men- 
tioned in the policy, collections enforced, etc. ; défendant being liable 
only for the amount of assessments collected. It did not agrée to pay 
any fixed sum, but merely to pay the amount collected from assess- 
ments, not exceeding the sum limited ; and therefore provided for ap- 
propriate proceedings in equity to adjust the dispute, if any, between 
the parties. It is not for the court to comment on the wisdom or 
folly of Buch contracts. If parties choosè to enter into them, they are 
bound by their terms, in the absence of fràud, unless they are contra 
honos mores. There is nothing shown to yoid the agreement the par- 
ties voluntarily entered into, and hence thia court adhères to the dé- 
cision heretofore made in this case^ viz., that redress must be sought 
in equity alone. 

The v'ews of this court in a case somewhat like that under consid- 
ération were limited, and suggestively, in the published opinion then 
given. Lueders' Ex'r v. Hartford L. é A. Ins. Co. 12 Fbd. Ebp. 465. 
It is not held that there may not be casés where resort can be had 
to a common-law remedy under contracts like that in question, but it 
is held, as expressed on demurrer in this case, that the clause in the 
contract as to the mode of ascertaining the rights of the parties is 
obligatory, (18 Fkd. Eep. 14,) with the possible exceptions suggested. 

Suppose there was not a valid défense, as in the Lueders Case, and 
it was ascertained that a mortuary loss had occurred, how could the 
amount to be recovered be ascertained? It was hinted that under 
the facts and pircumstances of that case certain raies might obtain ; 
but there was no question there raised as to a contract limitation with 
respect to the mode of ascertaining the amount of the ïiability. The 
mode prescribéd in this case by the contract between the parties, con- 
sidering their relations to each other, was the most practicable and 



204 FSDEfiAL BBFOBTKEt. 

équitable that could be adopted, and does not fall withm any of tbe 
prohibitory rules stated in the many cases cited, as to ousting courts 
of jurisdiction, and enforcing or refusing to enforce agreements for 
arbitration. The answer sets up as a défense the clause in the con- 
traet commented upon, wbich this court bas heretofore held, and still 
holds, to be a valid défense to this action at law. 

The motion to strike eut is overruled, and the plaintiff lef t, as here- 
tofore held, to the remedy in equity to wbich he agreed sole resort 
should be had. 

MoCeaey, J., concurs. 



BiiAKB and others v. Hawkins and others.* 
(Oireuit Oourt, E. D. North OaroUna. November Term, 1883.) 

1. Clbue — Agent of the Law. 

Where money is paid to a clerk, under a judgment of court, he reçoives it, 
not as the agent of either party, but as the agent of the law. 

2. JuDeMJENT— Okder op Court. 

A judgment is an order of court, within the meaning of section 828 of tbe 
Bevised Statutes of the United States. 

3. Clbkk'8 Commissions— Costs—Rbv. 8t. $ 828. 

A clerk who reçoives, keeps, and pays out money under a judgment is enti- 
tled to a commission of 1 per cent, on the amount so received, (Kev. St. 4 828,) 
to be paid by the défendant as part of the costs. 

At Juneterm, 1883, the complainants reeovered a judgment against 
the défendants for $29,355, and costa. Thereupon, before an exécu- 
tion was isBued, the défendants paid into the clerk's ofiBce the amount 
of the judgment and costs, except a commission of 1 per cent., which 
the clerk claimed under Eev.gt. § 828; the défendants denying the 
right of the clerk to any commission, and claiming that, in any view, 
they were not liable for it. 

E. G. Haywood, D. G. Fowle, Reade, Busbee â Busbee, Hinsdale de 
Devereux, for complainants. 

'Mernmon é Fuiler, for défendants. 

Seymoub, J. At June term a final judgment was rendered in the 
above case in favor of the plaintiffs and against the défendants. The 
défendants bave paid the amount of the judgment to the clerk of 
this court, who bas paid said amount to tbe plaintiffs; reserving, 
however, tbe question of bis commissions, and tbe amount claimed 
by him, $293.55, which is retained by the plaintiffs attorneys, to 
await the décision of this court upon tbe question wbether thèse 
commissions oùgbt to be paid out of tbe reoovery, or by tbe de- 

•Reported by John W. Hinsdale, Esq., of the Ralelgh, N. C, bar. 



BOEHEB V, HSADIiEf. 205 

fendants. The question dépends upon the construction to be put by 
the court upon section 828 of the Eevised Statutes. The clause of 
the section in controversy reads : 

" Clerk's Fées. * * * Por receiving, keeping, and paying eut money, 
in pursuance of any statute or oi-der of court, one per centum on the ariïount 
so received, kept, and paid." 

There is no question but that the clerk received, kept, and paid out 
the sum upon wbich he claims his 1 per cent. It is, however, con- 
tended by the défendants that he did not do so "in pursuance of any 
statute or order of the court. " The controversy dépends upon whether 
or not the clerk received the money under an order of this court. 
This seems too plain for discussion. The order of the court was its 
judgment. That was, that the défendants pay to the plaintiffs the 
amount to which they were entitled. It was under that order that the 
défendants paid the sum recovered to the clerk. They might hâve 
awaited an exécution, or, if the money were in the hands of a trus- 
tée or oflScer who would be controUed by the order of the court, an or- 
der directing such officer or trustée to pay as should be ordered. But 
it was safe for themto pay the clerk. The judgment and his oflËoial 
bond, one or both, were their protection. Had there been no "order 
of the court," they could not hâve safely paid him. He would hâve 
been only their agent, or the agent of the plaintiffs. The judgment 
under which, and under which alone, they paid the money, made him 
the agent of the law, and threw around the payment the security of 
the bond which the statute requires. If the clerk had failed to pay 
the amount of the judgment to the plaintiffs, it could not bave been 
again coUected from the défendants. 

The question, then, becomes simply one of who shall pay the costs. 
That bas been already determined ; the costs, which include those of 
the exécution, or whatever means bf coUecting the amount of the judg- 
ment take its place, must be paid by the défendants. This opinion 
has the support of that of Judge Dillok in the eighth circuit, {In re 
Goodrich, 4 Dill. 230,) and of Judge Dice in the fourth circuit, 
(Kitchen y. Woodfin, 1 Hughes, 340.) If the amount paid is not suf- 
âcient to satisfy the decree and the commissions of the clerk, the 
judgment opens to include snch commissions. Peyton t. Brooke, S 
Cranch, 92; Kitchen v. Woodfin, supra. 



ROEMËR V. HeadlEy. 

(CH/rcvM Court, B. New Jeney. December 15, 1883.) 

Patents fob Iktbiition»— AsnqiPATioiî— Pubuo UaB— luFEnroBMitipr. 

Lette» patent No. 208,641, granted to William Roemer, October 1, 1878, for 
•'improvementin locksiorsatcbels," ÀeW ralid,and infringed by the look-csse 
sold by défendant. 



206 fPDBSAIi »B£OaTEiS. 

In Equity. On bill, etc. 

F. C. Lowthorp, Jr., for coniplainani, 

A. Q. Keasbey é Sons, for défendant. 

Nixon, J. ïhe bill is filed agaiust the défendant for infringing 
lètters patent No. 208,541, granted to complainant, October 1, 1878, 
for "improvement in locks for satchels." The answer dénies (1) the 
infringement, and (2) that the complainant was the original and first 
inventer of the improvements claimed in said letters patent. The 
patentée, in bis spécification, states that the principal ohject of the 
invention m to reduce the expense of the lock-ease, and to render the 
same more practical in form and construction, and that it consists 
principally in forming the body of the lock-case into open ends, and 
in combining the same with cast blocks or end-pieees, whieh are sep- 
arately made. 

(1) A satehel marked Exhibit D, for complainant, was produced, 
and also a witness wha swore that he purchased the same at defend- 
ant's store in Broadway, New York. The slightest inspection shows 
that the lock-case thereon infringes the claims of the complainant' s 
patent. (2) A number of exhibits are put in by the défendant to 
proy© that the claims of the complainant's patent, were anticipated. 

Aftèr a eareful examination of thèse I deem it necessary to advert 
to only two of them, to-wit, Exhibit D 1 and Exhibit D 3. There 
Ib nothing in the patent sued on which is not fairly embraced in 
thèse, and jf the défendant bas shown that they were in public use 
before the date of the complainant's invention, the patent must be 
held void for want of novelty, The teatimony is very ine&ger. The 
défendant offered only one witness to prove their prior use. Charles 
Kupper testified that be was a manufacturer of bag f rames and locks ; 
that he hàd made locks like Exhibit D 3, and had sold them to de- 
fendant; that the first he sold tohim was on Mareh 31, 18T8, and 
that the first he ever made was a month or two before Christmas, in 
the year 1877. 

When èsked about locks like Exhibit D 1, he replied': "I made 
them a long timeafter Exhibit D 3, but I cannot say when." 

There was no other testimony on the subjèct of public prior use. 
The complajnant's patent was issued October 1, 1878. He was called 
to prove the date of bis invention^ and was asked: 

Question. " When did you first conceive this look in its présent practical 
form ? " Answer. " I made the invention in the early part of 1876, but made 
the first model in January, 1878, after which I constnicted the lock. My idea 
was to make a lock that would, when finished, resemble a lock I invented a 
few months before, and which I would be, able to make of cheaper material." 
Q. " Waa that model of which you speak similar to the lock patented by you?" 
il. " It was theaame thing." 

Such arre hi? 8;t|aieaiente, and bis only statements, ou the subject. 
They are not clear, but they ébo'v^ that the invention antedàtes the 
■proof of thé time of any prior' use. ' Thére wa's no iàross-exàmin^tion 



THE DLJLOOK. ,,^0.7 

oî the witness, and as the défendant seems willing to aeoept the &er 
count of this date without question, the court will do the same. , 

It mast be held that the oomplainant was the first and original 
inventor of the improvementa eiaimed in this patent. Lst therç be 
entered a decree for au injunctioaand an account. . . 



Thb Ullook. 
{Dîstria Court, O. Oregon. Februaiy 7, 1884.). , ■,? 

1. Opfbb of Pilot Sbkvtcb st BroHAL. 

The pilot commissioners of Oregon, under the pilot afit of 1883, are anthorlïèd 
and required to déclaré by rule what shall constitute aralid offer of pilot serv- 
ice on the Oolumbia river bar pilot grounds, by a signal addfessed tothe eye, 
and in so doin'g may prescribe the distance withia which sucli signal muât be 
made from the vesse) signaled. 

a. Signal fob an Opfer op Pilot Sbrticb. ' ' 

The statute of the United States does not prescribe «ny signal ta be osed: on 
a pilot boat in raaking an olïer of pilot service ; ân,d the light required by sec- 
tion 4233 of the Revised Statutfes, to be carried by a sailing pilot Vèssel at 
night, is only used to prevënt collision and incidentally to give notice of the 
character of such craf t ; but the usual signal by which an ofl'er oî pilot service 
is made, is the jack set at the main truck in the day-time, and " flare-iipà " at 
night, and this jafek is uauaily the ensign of the country in which the service ia 
«ttered. In the United States itis a blue fla^g chargedwitli a star fôr every 
State then in the Union, and called the "Union Jack," 

-S. Thb Tekm " State " CoNSTHUED TO iNOLUDE A " Tbbbitort." 

The term " state" in the act of March 2, 1837, (5 St. 153; section 4236, Rev. 
8t.,) regulating the taking of pilotsan a waterforming thé boiindary between 
two States, construed to iuclude an orgauized '* territory " o£ the United State^. 

In Admiralty. 

Frederick E. Strqng, ÎOT \ù)e\&nï. _ 

Erasmus D. Shattuck and Robert L. McKee, for claîmani. 

Deady, J. The libelant, George W. Wood, of the pilot schooner 
J. C. Cozzens, brings this suit to enforçe a claim for pilotage againgt 
the British bark Ullock of |76, gro^Jpg out of an offer to pilptsaid 
bark in and over the Columbia river bar on Maa"ch 2;4, 1883, and a 
refusai to reçoive the same by the masfcer and claimant, Alexander 
.Swietosla,wski. It appears that the alleged offer was made betv^een 
4 and 5 o'clock in the afternoon,, at a distance of some,.2^:.iï?jles from 
■the bar, and consisted in the schooner's setting her jaçk ,at the main 
truck until dark, when she set her mast headiight and bumed, 'flar^- 
ups" over the side, The bark was appr6aching the bar., from the 
south-west. The schooner, which was lying to, north^west of ^^ bar, 
on obserying her, ran down before the win4 aeross the course f>f the 
bark. The bark paid no atteintion to the schooner, butf.iepi .on ixe^ 
«course about E, N. ,E., until h^lf-past 7 o'cloek, wheri ^be bacl..th^8 
'Cape -Hancock light on ,heç porj; bqwj a,ud wa3;haile_d.^by th(S( steaïa- 



208 rEDEBAIi EEPOSTEK. 

tug Brenham and took tberefrom a pilot. The schooner, in her run 
down the coast, passed astern of the bark, and then jibed sails and 
followed her. Between 9 and 10 o'clock the bark tacked and stood 
oflf shore, and soon after met the schooner with the libelant on board, 
who offered bis services as pilot, which were declined by the pilot on 
board, the master being below. 

In the testimony of the crews of the bark and schooner there is the 
usual amount of flat contradiction concerning the disputed circum- 
stances of the case. The libelant swears that when the fog lifted 
and he first sighted the bark she was in plain sight, and not more 
than two or three miles' distant, -when he put the schooner bef ore the 
wind and madje sail to eut her off, and that when he came within a 
mile of her he expected the bark to lie to untii he could go aboard, 
but that she kepton her course, and the schooner had to jibe her sails 
to foUow, whereby the latter fell astern, and that thereafter he kept 
within from one to three-quarters of a mile of the .bark until they 
met. The master of the bark swears that when he first sighted the 
schooner she was seven or eight miles away, and when uight set in 
she was still four or five miles distant, and he did not see her after- 
wards until they met as above stated. But the master admits that 
he saw the schooner, and that he knew she was a pilot-boat from the 
flag at her mainmast, and that he did not lie to or signal for a pilot 
because he did not know certainly how far he was from the bar, and 
he did not want to take a pilot so far out as to incur the payment of 
"distance" or "off-shore" pilotage. 

It is admitted that the master of the UUock had been in the river 
four times; that the Cozzens is the only pilot-schooner that had been 
on the bar for about two years before this time ; and that she put a 
pilot on the Ullock underthe same master in 1882; that the libelant 
was a duly-qualified bar-pilot under the laws of Oregon ; and that the 
pilot from the tug who brought in the bark was a duly-qualified one 
under the laws of Washington territory. 

By section 30 of the Oregon "pilot act of 1882" (Sess. Laws 20) it 
is provided that "the pilot who first speaks a vessel • * * or 
duly offers his services thereto, as a pilot, on or without the bar pilot 
ground, is entitled to pilot such vessel over the same ;" but the mas- 
ter may décline the offer, in which case he shall pay, if inward-bound, 
full pilotage. And section 34 provides that the pilot commissioners 
"must déclare by rule what constitues a speaking of a vessel or an 
offer of pilot service on the bar pilot grounds," within the meaning of 
the act. 

By raie 9, adopted by the commissioners in pursuance of this au- 
thority, on November 17, 1882, it is provided that "the term, ' speak- 
ing a vessel for pilot service,' shall be construed to mean either by 
the usual form of hailing, or, if out of hailing distance, and within 
one-half mile, then the usual code of signal shall be made use of." 
This rule préserves the distinction that is made in the pilot act be- 



THE ULIiOOK. 209 

tween "speaking" or "hailing" a vessel and a mère "offer" of pilot 
service. The former implies that the parties are within speaking dis- 
tance, and can only be done by word of mouth, supplemented, it may 
be, by some suoh device for projecting the sound of the voice as a 
speaking trumpet, or even personal gesticulation. Com. v. Ricketson, 
5 Metc. 412; 2 Pars. Shipp. & Adm. 109. But an "offer" of pilot 
service may also be made by some arbitrary but established sign or 
démonstration, made from beyond ear-shot and addressed exclusively 
to the eye. And this offer, according to the rule, must be made witb 
"the usual code of signal," whatever that is. 

It is unfortunate that the commissioners did not déclare definitely 
what signal constitutes an offer of pilotage, as required by the act. 
Deelaring that the offer should bemade by "the usual code of signal" 
has thrown no light on the subject, and may be darkened it. The 
expert witnesses, including oue of the commissioners, do not seem 
to be very clear as to what this "usual code of signal" is; though 
the apparent confusion in their testimony may arise from the want 
of knowledge on the part of counsel who examined them. For 
instance, the commissioner having testified that an offer of service 
was customarily made by the pilot-boat putting her "head down to- 
ward the ship and showing her blue flag," her number beiug on her 
mainsaU, "and atnight by burning a flare," counsel for the liabelant 
said: "Then I understand you to mean the use of the usual signais 
prescribed bytbeEevised Statutes of the United States to be used on 
board pilot-boats?" to whioh the witness answered, "Yes." Now, 
there are no signais prescribed by the statutes of the United States 
for the use of pilot-boats in making an offer of pilot services, nor had 
the witness in any way indicated that that was what he meant when 
he said that the pilot-boat must "show her blue flag." The question 
was based upon an erroneous assumption, both as to the statute and 
the previous statement of the witness, while the answer was appar- 
ently made upon a total misapprehension of both. 

The rule assumes that there is a usual and well-understood signal 
by which a pilot-boat can make an offer of pilot service to a vessel 
not within hailing distance and be understood. But whether that 
signal is known throughout the civilized world, or whether its use is 
conflned to this coast, or even this port, does not clearly appear from 
the évidence, or at ail from the rule. But this is a subject concern- 
ing which I think the court may supplément the évidence by its judi- 
cial knowledge. And, first, the use of the word "code" in the rules 
is misleading. I think there is no "code" of pilot signais; although 
there may be, and doubtless is, a signal for "à pilot wanted" in the 
International code of signais, or that of any country. The usual sig- 
nal by which an offer of pilot service is made in the day-time is a 
flag at the masthead. This, of course, will be the flag of the coun- 
try in which the offer is made, or that modification or portion of it 
called the "Jack." In the United States it is a blue flag charged 
v.l9,no.3— 14 



210 FEDBBAIi IlEPOBTEB. 

■with a star for every state in the Union, and callôd the "Union Jack." 
By section 4233, Bubd. 11, Rev. St., a sailing pilot-vessel is re- 
quired to carry a white light at her mast-head duriag the night, and 
"exhibit a flare-up light every fifteen minutes." Butneither of tiiese 
lights, thus required to be oarried, are signais that indicate an offer 
of pilot service, for they must be earried although ail the pilots 
on the boat bave been distributed. Evidently the statute requires 
thèse lights to be burned for the purpose of making known the where- 
abouts and oharacter of the boat in order to prevent collision, and in- 
cidentally to advise any one in need of or desiring the service of a 
pilot where to apply. But the burning of "flare-ups," or a flashing 
light, over the side of the boat, at short intervais, ia also the cus- 
tomary method of making an offer of pilot service at night. It fol- 
lows that the libelant made a proper tender of his service as a 
pilot to the UUock, both in the day^time and after night, provided he 
did BO within the distance preseribed by the ninth pilot rule. With- 
out saying so directly, the neccessary effect of this rule seems to be 
to require that an offer of pilot service made otherwise than by hail- 
ing, as by signal, shall be made within a half-mile of the vessel sig- 
naled. 

Counsel for the libelant contends, however, that the power of the 
commissioners does not extend to prescribing the distance -within which 
6ucb offer must be made. But in nly judgment it does; and for man- 
ifest reasons. They are expreesly authorized and required to déclare 
what shall constitute a valid off«r of pilot service ; and when this may 
be done by a signal, as by setting a blue flag at the main-truck, the 
distance at which the pilot-boat is from the vessel signaled is a mate- 
rial élément in the transaction. And, first, it ought not to be so far 
away as to leave any room for dispute as to whethér the signal was 
made or seen; and, second, a vessel ought not to be compelled to wait 
for a pilot from a boat that signais her a great way off, when, in ail 
probability, she can get one much sooner and nearer in shore if she is 
allowedto proeeed on her way. And what distance issui table and 
convenient for both the party making and receiving the signal is a 
tnatter committed by the pilot act to the judgment of the commis- 
sioners. It is urged that a half mile is a very short limit, and that it 
might well be a mile or two. But the commissioners are probably 
better judges of this matter than counsel ; and if it is thought they 
hâve erred in this respect they must beasked to correct it. It is not 
in the power of the court to disregard or modify their action thereabout. 
As to whether the offer of thé libelant was made within a half 
tnile of theUllock.thetestimonyof the two crewsiswidely divergent. 
The reason given by the master of the Ullock for deolining the offer 
ia evidently not ingenuous, and ought to bave somô' effect upon his 
gênerai credibility. He says that he preferredto take a pilot from 
the schooner, becanse he knew the charges wére lesB than tbose of 
the tug pilots; and at the same tiroe, as a reason îor not taking this 



THE ULLOCK..: 2U 

cheaper one when it was offered hira, he says that he did not want 
to take a pilot so far from the bar and thereby ineur the a,dditional 
expansé of "distance" or "off-shore" pilotage. But he knew very 
well that there is no such thing as "distance" or "off-shore" pilotage 
at the mouth of the Colnmbia river, and that the charge for piloting 
a vessel in and over the bar is ail one, whether the pilot boards her 
at the outermost buoy or at any distance beyond. He had run bis 
reckoning for th.e Columbia river, and been unable to take an obser- 
vation for Bome days on account of the fog, and would naturally be 
glad to avail himselt of the services of the ârst pilot that offered, 
unless there was some spécial and cogent reason to the contrary. It 
is certain that the reason assigned was not the trwe one. And prob- 
ably the fact is that the master réally desired to take a pilot from the 
tug 80 as to facilitate a deal for towage, vrhich is a much weightier 
matter than the cost of pilotage. But I doubt, even on the évidence 
of the libelant and others of the erew of the schooner, if she was 
ever within à half mile of the UUook on that occasion before the pilot 
of the tug boarded her. The burden of proof in this respect is on 
the libelant; and he cannot pievail unless it appears from the évi- 
dence that his offer was made to the Ullock. within the légal distance. 
The strongest statement which the libelapt is.willing to make on 
this point is that he was within foom one to three-quarters of a mile 
of the Ullock; and this being taken as it should be most strongly 
against himself, amounts to no more than that he was within three- 
quarters of a mile of said vessel. 

But there is another point made in the case by thè claimant, upon 
which, I think, the décision must be against the libelant. By the act 
of March 2, 1837, (5 St. 153; section 4236, Eev. St.,) it is provided 
that "the master of any vessel ooming in or going out of any port 
situate upon waters which are the boundary between two states, may 
employ any pilot duly licensed or authorized by the laws of either of 
the states bounded on such waters to pilot the vessel to or from such 
port." This act was passed, asis well known, on account of thecon- 
flicting législation and the strife between New York and New Jersey 
and their pilots, for the pilotage of vessels entering the Hudson river 
and bound to New York or other. ports thereon. It may be admitted 
that the Columbia river is not a boundary between two "states" in 
the sensé in which the word is used in the constitution, but it is the 
boundary between one such state and an organized territory of the 
United States. The case is within the mischief intended to be reme- 
died by the act of 1837. The subject is wholly within the power of 
congress, and it may apply the iule conta,îned in the aet to the case 
of a water forming the boundary between a state and territory, as 
well as between two states of this Union. The territory of Washing- 
ton is an organized poïitical body, — a state in thé général and un- 
qualified sensé of the word,— with power to legislate on ail ïightful 
Bubjects of législation, excepi as .other sviae provided du its constitu- 



212 rSDBBAb BEPOBTEB. 

tion, one of whîch is pilota and pilotage on the Coliimbia river bar. 
The Panama, 1 Deady, 31. True, this power is derived for the time 
being from congress. But the power of a state of the Union to legis- 
late on this subject only exists until congress sees proper to exercise 
it. There being no constitutional limitation upon the power of con- 
gress in this respect, and it having the same right to regulate the 
taking of a pilot on a water that forms the boundary between a state 
and territory as it bas between two states proper, I think the word 
"state" in the act of 1837 ought to be construed to include any orga- 
nized body politic or community within the territorial jurisdietion of 
the United States, having the power to legislate on the subject of pi- 
lots and pilotage on a water forming a boundary between itself and a 
state of this Union. 

In the case of Tke Panama, supra, in speaking of this act in 1861, 
I said : 

"Whether the word « state' as nsed in this act should be construed so as to 
include a territory, is a question net free from doubt. The case is within 
the mischitf intended to be remedied by the act, and, it seems to me, might 
be held to come witbin its spirit and purview, without any violation of princi- 
ple. I do not think it cornes within the reasoning or considérations that con- 
trolled the court in Hephum v. Ellzey, 2 Cranch, 445, in which it was held 
that under the judiciary act, giving the national courts jurisdietion of con- 
troversies between citizens of différent states, that a citizen of the District 
of Columbia could not sue in such courts as a citizen of a state, because such 
District was not a member of the Union." 

The ruling in Hephum v. Ellzey, mpra, was afterwards applied in 
New Orléans v. Winter, 1 Wheat. 91, to the case of a territory, when 
it was said that although the district and tbe territory are both states, 
— political sooieties, — in the larger and primary sensé of the word, 
neitber of tbem is such in the sensé in which the term is used in the 
constitution, in the grant of judicial power to the national govern- 
ment on account of the citizenship or résidence of the parties to a 
controversy, when it is understood to comprehend only "members of 
the American confederacy. " In Barney v. Baltimore, 6 Wall. 287, 
thèse rulings were foUowed without question, upon the principle of 
etafe decisis. 

In Watson v. Brooks, 8 Sawy, 321, [S. 0. 13 Fbd.Eep. 540,] it was 
said even of this construction : 

"It is very doubtful if this ruling would now be made if the question was 
one of flrst impression; and it is to be hoped it may yet be reviewed and 
overthrown. Byit, and upon a narrow and technical construction of the 
word 'state,' unsupported by any argument worthy of the able and diatin- 
guished judge who announced the opinion of the court, the large and growing 
population of American citizens résident in the District of Columbia and the 
elglit territories of the United States are deprived of privilèges accorded to 
ail other American citizens, as well as aliens, of going Into the national 
courts when obliged to assert or défend their légal rights away from home." 

But the spécial reason for this narrow construction of the word 
"state" does not apply in this oase. Congress had the power to ox- 



THE BOOTS OBEIS V. THE SANTIAGO DE CUBA. 213 

tend the act of 1837 over a water constituting the boundary between 
the state of Oregon and the territory of Washington. The language 
actnally used in the act may reasonably be construed so as to accom- 
plish this object; and the case is within the misehief intended to be 
remedied thereby. The naaster of the Ullock being then entitled, 
upon this construction of the law, to take a pilot from either Oregon 
or Washington, without référence to which made the first ofier of his 
services, the libelant is not entitled to recover as for an offer and 
refusai of pilot services, even though such offer was duly made. 

There must be a decree dismissing the libel, and for costs to the 
claimant. 



The Scots Gebts v. The Santugo de Cuba.* 
The Santiago de Cuba r. The Soots Gbeys.* 
{Oireuit Court, E. D. Pennsykania. October 80, 1883.) 

1. CoLMsioN— Meeting of Vbssels ni Nabeo-w Channbi,— Light and Hbatï 

Steamers— DuTY Arising from Spécial Circumstances. 

Where, in a narrow, dangerous channel, a light steamer stenuning the tjde, 
having her movements oom{)]etely under command, observed a steamer of 
greater draught, deeply laden, co'ming with the tide, It was the duty of the 
light steamer to slow down or stop until the positions and courses of each 
should become known. 

2. Crossing CkiDBSEs — Maneuteb m Extremis. 

The light steamer having failed to do either, but having ported her helm 
and Rttempted to run across the track of the heavy vessel, when the vessels 
■were in dangerous proximity and the heavy yessel near a shoal, in conséquence 
of which maneuver a coJlision occu^red, the light vessel was in fault. 

In Admiralty. 

Appeal from the decree of the district court sustaining the libel of 
the Scots Greys, and dismissing the libel of the Santiago de Cuba. 
The facts are set forth in the following opinion, and also in the report 
of the same case in the district court, 5 Fed. Bbp. 369. 

Curtis Tilton and Henry Flanders, for the Scots Greys. 

John G. Johnson, for the Santiago de Cuba. 

MoKennan, J. Thèse are cross-libels, in which the district court 
adjudged the Santiago de Cuba in fault, in a collision jbetween her 
and the Scots Greys, and decreed damages against her aocordingly. 
The évidence touehing the position, course, ànd govermuent of the 
vessels hefore and about the time of the collision is of nnnsual vol- 
ume, and consists chiefly of the testimony of the oflBcers and cr^ws of 
the respective vessels. Hence, as is almost always the case under such 
circumstances, it is conâicting and contradictory, and any attempt to 

iReported by Albert B. Guilbert, Esq., of the Philadelphia bar. 



214 FEDEBAIi BEFOBTEB. 

reconcile it would not advance the décision of the case. It can only 
be dealt with by adopting suoh conclusions of fact of material import 
as may seem to be supported by a prépondérance of the probabilities 
of their truth. 

FÏNDING OF FAOTS. 

(1) About midday on the nineteenth of July, 1879, a collision oc- 
curred between the steamer Scots Greys and tbe steamer Santiago de 
Cuba, in the Delaware river, a short distance above the Horseshoe 
buoy, on the western side of the channel, by which considérable in- 
jury was caused to both vessels. 

(2) The Scots Greys was an iron steamer, about 300 feet in length, 
was loaded, and drew 21 feet of water, and was ascending the river 
towards the port of Philadelphia. 

(3) The Santiago de Cuba was a wooden steamer, was light, and 
drew 13J feet of wàter, and was descending the river. 

(é) The tide was flood, and the current, deflected by the Horse- 
shoe shoal, tended strongly to the eastem or New Jersey shore of the 
river. 

(5) This shoal was somewhat in the shàpe Of a horseshoe, with its 
base on the Pennsylvania or western shore and its apex in the river, 
leaving a channel about 400 yards in width between it and the New 
Jersey shore. Near this apex, x)n the pastern edge of the shoal, a 
buoy is anchored to indicate the turn of channel. 

(6) Both vessels were in sight of each other for sach a distance 
before they met as to involve no danger of collision, if they had been 
carefully and skillfully navigated. 

(7) The Scots Greys first reached the buoy, and put her helm to 
starboard to make the tnrn of the éhannèl, and when she rounded 
the buoy straightened up to proceed on the western side of the 
channel. 

• (8) At this time the Santiago de Cuba was several hundred yards 
above the Scots Greys, on the western side of the channel, but her 
course was eastward of that of the Scots Greys, and to her starboard.- 

(9) At the Horseshoe shoal the narrowness and shape of the chan- 
nel and the tendency of the tide impose upon vessels sailing in op- 
posite directions the duty of observing spécial caution as a necessary 
condition of their safety in passing each other. 

(10) In starboarding her wheel to carry her past the buoy, and in 
straightening up after she rounded it that she might pursue the west- 
ern line of the channel, the Scots Greys did what was proper for her 
under the circumstancés. 

(11) When the vessels were several hundred yards apart, the San- 
tiago de Cuba sounded a signal with her whistle and put her helm 
bard a-port, indicating an intention to pass the Scots Greys on her 
pOrt bow, and which gave her a direction across the track of the Scots 
Greys. 



THE S00T3 GREY8 V. ÏÉÈ flAHïUQO DE CUBA. 315 

(12) Whether this signal -was or was nçt heard on the Scots Greys, 
it was not answered, but she kept her courêe up the -western side of 
the channel. 

(13) The epeed of the Santiago de Cuba was not diminished; at 
least, not soon enough. If she had stopped or slowed down when the 
Scots Greys was rounding tbe buoy and straightening up, the collis- 
ion would not bave occurred, because the Scots Greys wonld hâve 
passed the place of the collision before the Santiago de Cuba reached 
it. Nor would it hâve occurred if the Santiago de Cuba had not hard 
ported her helm and sought to pass the Scots Greys on her port side. 

(14) If, in response to the Santiago de Cuba's movement, the 
Scots Greys had hard ported her helm, the vessels would probably 
hâve been brought together head on, with more disastrons consé- 
quences. But the impact of tbe former's bow was upon the staïboard 
side of the latter, about 30 feet from her bow, thus indicating that if 
she had kept her course the vessels would hâve passed in safety. 

CONCLUSIONS OF liAW. 

Considering the condition of navigation at. the locality iri question, 
the size and depth in the water of the Scots Greys, the direction in 
which she was sailing, and the difficulty of oontrolling her move- 
ments, she was not in fault in adopting a course up the wôstémside 
of the channel and in pursuing it without déviation. 

In view of the same considérations, of the size and draught pf tbe 
Santiago de Cuba, that she was light» that she was descending the 
river with the tide towards her head, and her movements completely 
under command, and that the passage of vessels such as the two in 
question at the Horseshoe: buoy is attended with risk of collision, it 
was inoautioua in the Santiago de Cuba to pass the Scots Greys at 
that point, if she could avoid it. It was the duty of the Santiago de 
Cuba to stop or élow down when she observed the Seots Greys round- 
ing the buoy, Pailing to do eièher, and in porting her helm and at- 
tempting to ran across the track oî the Scots Greys, when the veasels 
were in such proximity to each other, she was in fault and must be 
held responsible for the collision. 

There mûst, therefore, be a decree dismissing the libel of tbe San- 
tiago de Cuba, with costs, and a deoree in favor of the Scots Greys for 
the amount of damages sustained by her^ and costs. 



216 VBOKBAIi BBPOBTSB. 

Thb Peeb op thb Eealk.* 
ICirettit Court, E. D, Louisiana. December, 1883.) 

ChaBTBR-PaKTT— BlLLS OF liADma. 

A charter-party contained the following stipulations : "The captain siiall 
8ign bills of Jading at any rate of freiglit as preaeated, without préjudice to tliis 
charter-party; any diflference belween the amount of freight by the biils of 
lading and this charter-party to be settled at port of loading, in cash, before 
sailing. * * * The owners or master of the steamer shall hâve an absolute 
chai-ge and lien upon the cargo and gooda laden on board for the recovery and 
payment of ail freight, dead freight, demurrage, and ail other charges what- 
Boever." The master refused to sign bills of lading unless there wasstipulated 
or expressed therein, "othèr. conditions as per charter-party." Meld that 
the master had the right to insist upon such stipulation. 

The Ibis, 3 Woods, 28, distinguished. 

Admiralty Appeal, 

Charles B. Singleton and Richard H. Browne, for libelants. 

James McConnell, for claimanta. 

Paedee, J. The libelants Bue for a breach or a cnarter of the 
British steam-ship Peer of the Eealm, made in Liverpool, England, 
September 28, 1878. The charter-party contains among others, the 
following stipulations : 

"The captain shall sign bills of lading at any rate of freight as presented 
without préjudice to this charter-party; any diflference between the amount 
of freight by the bills of lading and this charter-party to be settled at port of 
loading, in cash, before sailing. If the steamer be not sooner dispatched, 
twenty working days (Sundays excepted) shall be allowed the charterers for 
loading, etc. And it shall be at the discrétion of the said charterers or their 
agents to detain the steamer a further period not exceeding ten likedays, for 
the pnrposes aforesaid; the charterers or their agents paying démarrage at 
the rate of 60 pounds per day. The owner or master of the steamer shall 
hâve an absolute charge and lien upon the cargo and goods laden on board 
for the recovery and payment of ail freight, dead freight, demurrage, and ail 
other charges whatsoever. , 

The breach and violation of the charter-party alleged is that the 
master refused to sign bills of lading unless there was stipulated or 
expressed thereon, "other conditions as per charter-party. " The ques- 
tion for décision is whether the master had the right to insist upon 
such stipulation. The charter-party, so far as it speaks within the 
law, fumishes the rule of conduct to the parties. It provides for a 
lien upon the cargo and goods laden, for the freight, dead freight, and 
demurrage. This is lawful and binding between the parties and as 
to ail shippers with notice. According to the English authorities, 
which are clear upon the subject, "a lien may be created by con- 
tract between the parties, not only for freight, but for dead freight, 
demurrage, and as many more of the usual claims of the ship-owner 
as they choose to name." Macl. More. Shipp. (3d Ed.) 512. See 

^Keported by Joseph P. Hornor, Esq., of the New Orléans bar. 



THE PEEB OF THE BEALtl. 217 

uote 7, for authorities. And that shippers with notice of stipulations 
of charter-party are bound. See Sandeman v. Scurr, L. R. 2 Q. B. 
86, quoted in Mael. 351. Peek v. Larsen, h. R. 12 Eq. 378. See, 
also, Macl. 514. 

In 1 Pars. Shipp, 302, 303, it is said: 

"We hâve seen that the charter-party usually piovides expressîy that the 
owner binds the ship and the freight to the performance of his part of the 
bargain, and the shipper binds the cargo to the ship for his performance. 
But without thèse expressions the law-merchant créâtes or impiies this mu- 
tual obligation in every case of a contract of affreightment whether by bill 
of lading or charter-party. J/, however, the parties choose to stipulate oiher- 
wise, OIS that th^re shall be no lien, or that the lien sliall be otTier than it tisu- 
ally is, they may do so." 

Mj attention has been called to no American case that holds to the 
contrary, and I bave examined the foUowing, cited by proctors : The 
Volunteer and Cargo, 1 Snmn. 551 ; The Bird of Paradise, 5 Wall. 
559; The Salem's Cargo, 1 Spr. 389; Perkins v. Hill, là. 124; 406 
Hogsheadt of Molasses, 4 Blatchf. 319 ; A Quantity of Timber and Lum- 
ber, 8 Ben. 214. Ail are to the purport that the owners and charterers 
may make their own stipulations as to the terms of the charter-party, 
and ail imply, though not expressîy so deeiding, that shippers with 
notice will be bound by such stipulations. 

The case of The Ibis, 3 Woods, 28, relied upon by proctor for libel- 
ants, would be exactly in point, and partly support their preteii- 
sions, but for the fact that thereiu the shipper had no notice of the 
terms of the charter until after shipment. The case of Kerford v. 
Mondel, 5 Hurl. & N. (Ex.) 931, relied upon in The Ibis Case, was a 
case where a clean bill of lading was given which contained no lien 
for dead freight, and where the contract for shipment did not show 
notice of any charter-party. It may be that there is some conâict 
of authority as to the effect to be given against outside shippers of 
freight on a chartered vessel, so far as liens are concerned, even 
with notice of the stipulations of the charter-party, but I can see no 
reason why the rule as laid down in Maclachlan, supra, should not be 
taken as the correct one. If a shipper has notice, let him submit to 
the contract that furnishes the ship, or take his freight elsewhere. 
Neither he nor the charterer has the right to complain; the latter 
because he has pleased to bind himself, and the shipper because if 
his eyes are open he need not bind himself nor his goods unless he 
pleases. 

It may be conceded for this case that a shipper, without notice of 
the terms of a charter-party, is not bound, nor his goods, for any 
liens not given by the law. 

In Gracie v. Palmer, 8 Wheat. 605, it was held that the charterer 
and master could not, by a contract made with a shipper who acted 
in good faith, i, e., without knowledge of the charter, destroy the lien 
of the owner on the goods shipped for the freight due under the char- 
ter-party. See, also, The Schooner Freeman, 18 How, 182. From ail 



218 FEDEBAL BEPOSTEB. 

of whicli ît seems clear that the owner had a clear rigM to. stipulate 
for a lien on the entire cargo for freight, dead freight, and demurrage; 
that such stipulation wa,s gopd against the charterer, and probably 
good against ail shippers with notice ; that the master had no right 
to derogate from the charter-party or jeopardize the liens stipulated 
therein; and that the ship was not bound to take any cargo furnished 
by charterer, except according to the terms of the oharter-party. 

It is clear that if the master had given elean bille of lading, and 
shippers had been given no notice, the' lien given by the charter- 
party might hâve been entirély defeated. It follows, therefore, that 
the master of the Peer of the Realm was not only justified in refus- 
ing to sign bills of lading, without adding, "other conditions as per 
charter- party," but he was pursuing the exact line of hia duty in 
order to protect the owners' interest. 

The m^ister's conduct was no treach of the charter-party on the 
part of the ship, and therefore the libelants hâve no case. It is urged 
that they should recover certain advances made as per charter-party. 
I am unable to see why. The évidence shows great loss to the ship 
because the charterer failed, without sufficient cause, to furnish cargo. 
Argument has been made that shippers of cottou cannot, and will 
not, ship goods without what is ca,Ued a clean bili of lading. Thia 
may be ; but I do not see -what the court has to do with the matter. 
If charterera of ships rely on outsiders to furnish a cargo, and such 
outside shippers require clean bilIs of lading, let charter-parties be 
made accordingly. Nothing would be easier, if the parties agrée, 
than that the charter-party should stipulate that the master should 
give clean bills of lading for ail cargo not furnished by charterer, or 
that the master should give bills of lading as presented, and the 
courts would undoubtedly enforce such stipulation. 

A decree wiU be entered dismîssing libel, with costs. 



The Chablottb Vandesbilt. 
( District Court, 8. D. New York: Januaiy 4, 1884 

Shipping— BnppLiœs— MARiTEau Lien — Mortgagb— Pbiobitt — Section 4192. 

For necessary supplies furnished a veasel in a state not that of her owner's 
résidence, a maritime lien presumptively arises, and this lien will take preced- 
ence of a prier mortgage, duly reglstered, under section 4192 of tlie Revised 
Statutes. The mortgageé, by assentingto the use and possession of the veasel 
by the mortgagor for the purposes of navigation, without restriction, assents by 
implication to the création of such maritime liens as by law arise incidentally 
in the ordinary business of the ship. 

This libel was filed to reoover a balance of $468.30, with interest, 
for coal furnished to the steam-boat Charlotte Vanderbilt, at Phila- 
delphia, in Jnly and Auguste 1880. The steam-boat wasat that time 
owned by a New Jersey corporation j which purchased the beat on 
May 10, 1880, and gave a considération mortgage of $25,500 to se- 
cure varions promissory notes for the pnrchase price. The mortgage 
was duly recorded in the New York custom-house, and also in the 
custom-house at Camdenj New Jersey, where the vessel waa also en- 
rolled by the corporation pulrchaser. The mortgage provided that 
the mortgagees should hâve possession of the ship until a default in 
its terms, and that, upon such default, the mortgageé inight take pos- 
session. The bill of supplies for coal was incurred while the mort- 
gagor was in possession and running the steam-boat, and before any 
default in the mortgage. This libel was filed on the second of Sep- 
tember, 1880. On the thirtieth of August prior thereto, the mort- 
gageé took possession of the steam-boat for a default in the terms of 
the mortgage, and advertised her for sale on the fifteenth of Septem- 
ber, when shewas sold for $12,000, the mortgageé having intervened 
as claimant in this suit, and given the usual bond for the release of 
the vessel. 

Marsh, Wilson é Wallis, for libelants. 

Ten Broeck de Van Orden, for claimant. 

Bkown, J. The boat in question was running as an excursion 
boat. The coal was furnished upon 22 différent days, and was evi- 
dently necessary for the prosecution of her voyages. Being furnished 
in the port of another state from that of her owner's résidence, under 
the ordinary maritime law of this country, the coal was presumptively 
furnished upon the crédit of the ship as well as of her owners; and 
the testimony Corroborâtes this fact. The libelants acquired, there- 
fore, presumptively, a maritime lien upon the vessel for the coal thus 
supplied. Tke Neversink, 5 Blatchf. 539; The Lulu, 10 Wall. 192; 
The Eliza Jane, 1 Spr. 152; The New Champion, 17 Fed. Eep. 816, 
and cases cited. 

It is urged that as the mortgage was duly recorded, as required by 
section 4192 of the Revised Statutes, prior to the time when thèse 



220 FEDERAL BBPOBTBB. 

supplies were furnîshed, the mortgage was a notice to ail persons; 
and the mortgagees oontend that ail ports of the country, as regards 
them, were home ports, and that no lien could be thereafter acquired 
against them which would take precedence of the mortgage. The sec- 
tion of the Eevised Statutes in question gives constructive notice to ail 
persons of the existence of the mortgage. That its purpose is, how- 
ever, only to give such constructive notice, is apparent from its except- 
ing persons who hâve actual notice thereof from the effect of its provis- 
ions. In providing, as thia mortgage did, that the mortgagor might 
hâve the possession and use of the vessel for the purposes of naviga- 
tion, vrithout restriction, the mortgagee necessatily assented by im- 
plication to the création of such maritime charges and liens on the 
vessel as by law arise inoidentally in the course of the business and 
navigation to which the mortgagee assented; and maritime liens for 
supplies thus arising take precedence, therefore, of the prior mort- 
gage. That rule was laid down in this district in the case of The 
E, M. McGhesney, 8 Ben. 150, and the same rule has been else- 
where sustained. The Granité State, 1 Spr. 277 ; The Henrich Hud- 
ton, 7 L. E. (N. S.) 93. See, also, The Lulu, 10 Wall. 192, 193; The 
May Queen, 1 Spr. 588. 

The libelant is entitled to a decree for $582.75, with costs. 



THI! MASâlB ELIiEN. 221 

The Magsib Ellbn.' 

(Distria Court, E. D. New Torh. -December 3, 1883.) 

Baivage— Compensation— CosTS to Neitheb Paett. 

A schooner grounded on Brigantine shoal, a dangerous shoal in the Atlantic' 
océan, in fair weather, witli the wind light, the sea smooth, and the tide young 
flood. The bottom was smooth, she did« not pound, nor leak, nor suffer any 
damage, nor set a diatreas' signal. The value of the schooner was $4,000. A 
tug, which came by, ofliered to tow her oS' for $500 and her master oiîei-ed to 
pay $200, but neither offer was accepted, end the tug towed her off the shoal 
to an anchorage three miles distant, bcing employed some three-quarters of an 
hour, on the understanding that underwriters should iix the amount of com- 
pensation. On their refusai to do so, this suit was brought. The owners of 
the tug claimed $1,000 Held, that there was no room to deny that this was a 
salvage service ; that the service was worth $200, and the ofler of that sum 
should hâve been accepted. Costs were not given the libelant, because the 
efforts of tlie owners of the schooner to agrée on an amount before the suit were 
not met in a proper spirit, and there was some reason to suppose there was the 
intention to compel payment of more than was just by pressure of légal pro- 
ceedings. Costs were not given the claimant, as no amount was tendered, and 
the ground was talien that the service was towage, not salvage. 

In Admiralty. 

Owen é Gray, for libelant, 

Beebe de Wilcox, for claimant. 

Benedict, J. This action is to recover salvage for services ren- 
dered in towing the schooner Maggie Bllen off the Brigantine shoal. 
Brigantine shoal is a dangerous shoal in the Atlantic océan, just above 
Absecom. On the afternoon of April 23, 1882, between 5 and 6 
o'clock p. M., the schooner Maggie Bllen, laden with ice and boundto 
the southward, grounded upon this shoal. The wind at the time was 
iight from the north-west, and the weather fair. The sea was smooth 
and the tide was young flood. The vessel herself was sound and 
stanch. The bottom was smooth; she did not pound ; made no wa- 
ter, and suffered no damage whatever by reason of the grounding. 
No signal of distress was set. As the wind and sea were, and con- 
tinued to be until about midnight, there is no reason to doubt that 
the schooner would hâve got off the shoal by means of her windlass 
«nd kedge. She was within reach of assistance from a life-saving 
station, and a life-saving crew was on the way to her relief when the 
tug Argus, also bound to the south, came within bail and tendered 
her aid for a compensation of |600. The master of the schooner 
offered $200, and after the master of the schooner had, by sounding, 
shown the master of the tug that he could approach the schooner with- 
out danger, the tugtook hold of the schooner, upon the understand- 
ing that the amount of her compensation should be left to the under- 
writers at Philadelphia. Upon this understanding the tug towed the 
schooner off the shoal, and took her to a place of anchorage some 

iKeported by R. D. & Wyllys Benedict, of tlie New York bar. 



VBDBBA.L .^IPOBTEB. 

three miles distant, being employed some three-quarters of an hotir 
in performing the service. The underwriters refused to détermine 
the amount, and, the parties being unable to agrée, this suit is the re- 
Bult. - : 

There is no room to deny that the service rendered was a salvage 
service. A vessel aground on Brigantine shoals, in the Atlantic océan, 
is always in péril, but not necessarily in immédiate péril. The serv- 
ice rendered by the tug was'not a towage service. No tug could 
be expected to render a servioelof the character in question for ordi- 
nary tovfage compensation. The service was salvage, and the only 
question upon ■which there can bè dispute is as to what will be a proper 
salvage compensation therefor. The différence between the parties is 
"wide. One thousand dollars was demanded by the tug after the ser- 
vice had been performed. Two hundred dollars was offered by the 
schooner at the time of the service. On the trial $750 was the least 
sumsuggested in behalf of the libelant; flOO the greatest suggested 
in behalf of the claimant. Upon considering ail the circumstances, 
and considering that the value of the schooner does not exceed 
$4,000, I am of the opinion that the offer of $200, made by the mas- 
ter of the schooner at the time the service was rendered, was a lib- 
éral one, and should hâve been accepted. That sum is in my opinion 
the proper compensation to be awarded now. I give no oosts to the 
libelant, because I consider that the endeavors of the owners of the 
schooner to agrée upon an amount, made before suit brought, were 
not met in a proper spirit, and there is some reason to suppose that 
there was the intention to compel payment of a larger amount than 
was just by the pressure of légal proceedings. I cannot give the claim- 
ant his costa, for no tender of any amount whatçver was made in the 
answer, nor was any sum paid into court. On the contrary, the ground 
was taken in the answer that the service rendered was towage, not 
salvage. 

Let a decree be entered in favor of the libelants for the sum of 
$200, without costs. 



TES fOMOA. 223 

The Ponça 
{Distriel Court, E. B. New York. November 23, 1883.) 

LiABiLiTY OF Steambe FOR Damagb to Cakal-Boat bt Steambr's Careening 
Where a canal-boàt, employed in coaliûg a steamer, was, whan nearly dis- 
charged, hauled by the steamer to a position where she lay wedged in between 
the steamer and other boàts in the ^lip, and when the tide lell the steamer 
took bottom and careened over and erushed the eanal-boat, which could not 
extricate herself, ànd the liability of the steamer to careen when the tide fell 
was known to those in charge of the steamer, M^, that the obligation to re- 
move the canal-boat from the dangerous position before the tide fell attached 
to those in charge of the steamer, and, that obligation not baving been dis- 
charged, the steamer was liable for the damage that resulied. 

In Admiralty. 

E. D.McCàrthy;ior\ih&\&Tit. 

Ullo é Davison, (Chas. E. Le Barbier, )ior clajmant. 

Benediot, J. In this case the foUowing facts appear: The canal- 
boat Orville Dean wa,s employed in coaling the Bteam-ship Ponça. 
The lâttèr vëssel \fa8 at the time lying in a slip, and the canal-boat 
along-side. When the canal-boàt was nearly discharged, she waa 
hauled by the steamélr to a position where she lay wedged in between 
the side of the steamer and other boats iii the slip, and there she was 
left until the tidë fell. Wheû the tide fell, the steamer took the bot- 
tom and careened over towards and upon the canal-boat, whèrèby 
the canal-boat was erushed between the boat on the outside of her 
and thç steamer. In the condition of the slip it was not possible 
for the canal-boat to extricate herself îrom the position where shô 
had been placed by those in chargé of the steamer. The liability of 
the steamer to careen over when the tide fell, was known to those in 
charge of the steaméri tFpon thèse facts the steam-ship must bé 
held responsible for the injury done to the canal-boat. When those 
in charge ôf the steamer, for their own cohvenience, hauled thé 
canal-boat into a position where she was in danger of being injufëd 
by the careening of the steam-ship when the tide fell, and from which 
the canal-boat could not extricate herself, the obligation to remove 
her from that position before the tide fell attached to those in charge 
of the steam-ship. That obligation not having been discharged, the 
steam-ship is liable for the damages that resulted. 

Let a decree be entered in favor of the libelants, with an order of 
référence to ascertain the amount. 

«Reported by R. D. & Wyllys Benedict, of the New Torkbar. 



224 fJSDfiBAL B£fO£XSB. 

SoOBEIi V. GHiES.' 
{Vùtriei Court, E. D. New York. September 21, 1883.) 

iNTEBROOATOBniS — TlMK FOR PBOPODNDINa — AdmIBALTT RdlBS 23 AND 32 — 

RniiEs 99 AND 100 oF THE SoïTrHBRii District op New York. 

in the eastern district of New York, interrogatories to a party are net par- 
mitted in admiralty unless propounded in accordance witb the admiralty rules 
of the suprême court. Raies 99 and 100 of tlie soutliern district of New York 
liave never been adopted by tiiis court. 

In Admiralty. 

The libelant propounded certain interrogatories to be answered by 
the claimant. Thèse interrogatories were not attached to the libel, 
and were not propounded until after the claimaint had filed his an- 
swer. 

H. D. Hotchkiss, for libelant. 

Benedict, Taft d Benedict, for claimant. 

Bbnediot, J. The time for propounding interrogatories on the 
part of a libelant is fixed by the twenty-third admiralty rule of the 
United States suprême court, according to which rule interrogatories 
are reguired to be put at the close or conclusion of the libel. See, 
also, rule 27. So, interrogatories propounded by the claimant are by 
the thirty-second rule required to be made at the close of the answer, 
The admiralty rules promulgated by the United States suprême court 
supersede any rule of a district court fixing a différent time for pro- 
pounding interrogatories; and for this reason the 99th and lOOth 
rules of the district court of the southern district of New York, 
adopted many years prior to the promulgation of the admiralty rules 
by the United States suprême court, hâve never been adopted as 
rules of this court. In this court, interrogatories are not permitted 
unless propounded in accordance with the admiralty rules of the 
United States suprême court. 

iReported by R. D. & WyUys Benedict, of the New York bar. 



SEiiii V. noonân. 225 

Belii V. NooNAK and othera. 

{Circuit Court, N. D. lowa, 0. B. January Term, 1884.) 

Rbmoval op Cause — Action by Assignée. 

Though the assignée of a chose in action cannot sue originally in the fédéral 
courts unless his assigner could hâve done so, he can accomplish the same re- 
suit by bringing his action in the state court and removing it thence to the 
fédéral court. 

Motion to Kemand. 

Dunccmbe é Clarke and Harrison d Jenswold, for plaintiff . 

Soper, Crawford é Carr and Geo. E. Clark, for défendants. 

Shibas, J. On the twenty-seventh of December, 1882, the défendants 
M. F. Noonan and Patrick Nolan entered into a written contract with 
one W. H. Godair, whereby défendants agreed to deliver to the order of 
said Godair, on the second or third day of April 1883, 300 head of 
cattle, at Emmettsburg, lowa. The cattle were not delivered and 
Godair sold and assigned the contract to James Bell, the présent 
plaintifif, who was then and is now a citizen of the state of Illinois. 
Godair, the assignor, and the défendants were at the date of the con- 
tract, and are now, citizens of lowa. Bell broughtan action against 
the défendants in the district court of Palo Alto county, lowa, to re- 
cover the damages alleged to hâve been caused by the failure to de- 
liver the cattle according to the terms of the contract. Défendants 
filed an answer denying tbat there had been a breach of contract 
upon their part, and averring that Godair had failed to perform the 
conditions of the contract upon his part, and that thereby they were 
excused f rom performance upon their part. Thereupon plaintiff filed 
a pétition for the removal of the case into this court, upon the ground 
that he was a citizen of Illinois and the défendants were citizens of 
lowa, and that by reason of local préjudice he could not obtain a fair 
trial in the state court. The proper pétition, affidavit, and bondcon- 
forming to the requirements of the act of 1867 were filed, and the 
state court ordered the case to be removed. The record having been 
filed in this court, the défendants move to remand the same to the. 
state court, on the ground that the plaintiff is seeking to maintain 
an action upon a contract as an assignée thereof, and that as his 
assignor, Godair, could not himself hâve brought the action origi- 
nally or by removal into the fédéral court, therefore his assignée could 
not do BO, and in support of this position défendants cite the case of 
Berger v. Go. Com'rs, 2 McCrary 483; [S. G. 5 Fbd. Rbp. 23.J In 
that case the right of removal was asserted under the act of 1875, 
and his honor, the circuit judge, held that the provision found in the 
first section of the act, which déclares that neither the circuit nor 
district court shall "hâve cognizance of any suit founded on contract 
in favor of an assignée, unless a suit might be prosecuted in such 
court to recover thereon, in case no assignment had been made, ex- 
v.l9,no.4— 15 



226 FEDEBAIi BBPOBTEB. 

cept în cases of promîssory notes negotiable by the law-merchant and 
bills of exchange," shoald be read in connection with tbe second sec- 
tion providing for removal of cases ; and so, construing the same, the 
resuit was that a removal could not be had under that act in a case 
where a plaintiff was an assignée, unless bis assignor might bave 
brougbt suit in tbe fédéral court. 

The removal in the présent case was sought, not under the provisions 
of the act of 18T5, but under the act of 1867, as embodied in subdi- 
vision 3 of section 639 of the Eevised Statues. This subdivision was 
not repealed by tbe passage of the act of March 3, 1875. Miller v. 
G., B. é Q. B.Go. 3 McCrary, 460; [S. C. 17 Fed. Rep. 97.] It 
remains in fuU force; and the question now presented and to be de- 
cided is whether, under its provisions, an assignée of a contract who 
is a citizen of a state other than that of whieh the défendants are 
citizens, and who bas brought an action upon the contract for a sum 
exceeding f 500, in a state court, can remove the same into the féd- 
éral court when it appears that plaintifs assignor is and bas been 
from the date of the contract a citizen of the same state witli de- 
fendants. 

In the case of City of Lexington v. Butler, 14 Wall. 282, the su- 
prême court held that tbe act of 1867 was not oontroUed or restricted 
by the provision found in the eleventb section of the judiciary act, to 
the effect "that no circuit court sball bave cognizance of any suit to 
recover the contents of any promissory note or other chose in action, 
in favor of an assignée, unless such suit may hâve been prosecuted 
in such court to recover the said contents, if no assignment had been 
made, except in cases of foreign bills of exchange." The court ruled 
that "snits may properly be removed from a state court into the cir- 
cuit court, in cases where the jurisdiction of the circuit court, if the 
suit had been originally commeuced there, could not hâve been sus- 
tained, as the twelftb section of the judiciary act does not contain 
any such restriction as that contained in the eleventb section of the 
act defining the original jurisdiction of the circuit courts. Since the 
décision in the case of Bushnell v. Kennedy, 9 WalL 387, ail doubt 
upon the subject is removed, as it is there expressly determined 
that the restriction incorporated in the eleventb section of the judi- 
ciary act, bas no application to cases removed into the circuit court 
from a state court ; and it is quite clear that the same rule must be ap- 
plied in the construction of the subséquent acts of congress extending 
that privilège to other suitors not embraced in twelftb section of the 
judiciary act. Such a privilège was extended by the twelftb section 
of tbe judiciary act only to an alien défendant and to a défendant, 
citizen of another state, when sued by a citizen of the state in which 
the suit was brougbt; but the privilège was much enlarged by subsé- 
quent acts, and tbe act in question extends it to a plaintiff as well as 
to a défendant," etc. The court held that under the act of 1867 the 
case was properly removable, even though plaintiffs therein should 



FBEIDLKB V. OHOTABD. 227 

be held io be the assignée of the Lexîngton and Big Sandy Eailroad 
Company, the payée and original owner of the bonds sued on ; the 
said railroad company and the défendant, the city of Lexington, being 
both corporations created under the laws of the state of Kentucky. 

If then, as is held in that case, the restriction in the judiciary act, 
declaring that the circuit court shall not bave cognizance of any suit 
on a chose in action, in favor of an assignée, unless the assigner could 
hâve maintained the action, is not applicable to the removal act of 
1867, but, under its provisions, an assignée might remove a cause, 
although his assigner was a citizen of the same state as was the de- 
fendant, no good reason is perceived why the same rule should not 
apply to the présent case. The first section of the act of 1875 is al- 
most identieal in point of language with the judiciary act, and, if the 
latter act did not control or restrict a removal under the act of 1867, 
I do not see how it can be well held that the act of 1876 bas that 
effect. 

Under the rule laid down in City of Lexington v. Butler, it roUows 
that the case was properly removed, and the motion to remand must 
be overruled. 

Since the foregoing opinion was written the décision of the suprême 
court in case of Claflin v. Ins. Go. bas been announced, wherein it is 
held that the provisions of the first section of the act of 187Î5 does 
not limit or control the right of removal conferred by the second sec- 
tion of the act ; and that an assignée of a chose in action might re- 
move a cause from the state conrt, although he could not bave orig- 
inally sustained an action in the United States court. See Claflin 
V. Ins. Go. 3 Sup. Ct, Eep. 507. 



Frbidlbe v. Chotard and Husband.* 

{Circuit Court, W. D. Louisiana. October, 1883 

Beuoval of Catibe — Sbparatb Coktroverst — Intervbnor. 

The plaintiff, clalraing that by a oontract with him the défendants becamtf 
lessees of a plantation, of which he became owner, sued them for rent, and as- 
serted his lessor's lien upon ail eflects found upon the premises. The parties 
ail lived in the same state. A citizen of a différent state intervened, claiming 
to be the owner of a part of the effects in question, and praying, as essential 
to his relief, that the oontract between the plaintifE and the défendants be de- 
creed to be a mère mortgage giving the plaintifE no riglits of ownership. Eeld, 
that there was no separable eontroversy wholly between the intervenor, on one 
aide, and the other parties upon tlie other, such as to give faim the right to re- 
move the cause into a fédéral court. 

On Motion to Eemand. 

' Reported by Talbot Stillman, Esq., of the Monroe, La., bar. 



228 FEDEBAL BEFOBTEB. 

BoABMAN, J. Isaac Freidler entered into a contract with Mrs. 
S. M. Chotard and hasband, ail citizens of Louisiana, in relation to 
the Minorica plantation, in Concordia parish, Louisiana. A state- 
ment of the demands in his pétition will be sufficient, without recit- 
ing in détail the items of the agreement for considering plaintifs 
motion to remand. Freidler, basing his title and ownership on the 
contract agreement between himself and Mrs. Chotard, sues her for 
$1,166 for one year's rent of the said plantation, and asks for 
récognition and enforcement of his lessor's lien on ail the effects found 
on the premises. Issue by default was joined on his action against 
Mrs. Chotard, when W. E. Young, a citizen of Mississippi, intervened 
in the suit to assert his claim to the ownership of one-half of the 
stock, revenues, etc., on which Freidler prays for his lien, and to de- 
mand other rights to and uses of the plantation. In maintenance 
of his action he allèges that in pursuance of a contract entered into 
■with Mrs. Chotard and husband, in June, A. D. 1882, subséquent to 
the date of the agreement between Freidler and Mrs. Chotard, he 
became the owner of and entitled to the rights and things claimed by 
him. AUeging that he fears collusion between Freidler and Mrs. 
Chotard to defraud him, his claim to said property and rights are set 
up against ail parties. He avers that the agreement upon which 
Freidler bases his action is, in form and substance, only a common- 
law mortgage, and the property and rights claimed by him are in no 
way affected by Freidler's pretended claim to the ownership of the 
plantation, or by any liens or privilèges in his favor. Young 
prays that Freidler's demand as to the ownership of plantation be 
rejected; that the contract be declared a common-law mortgage ; that 
he bave exclusive control of the plantation business; that his right 
to one-half of the stock, revenues, etc., of the plantation, for the 
period of 10 years, be recognized and made executory. 

It may be that under the practice in Lousiana he has included, 
among his several demands, some issues upon which, as an inter- 
venor, he could not in this suit be heard in the state court. But 
whatever view this court may entertain, should such questions of state 
practice be presented in a case on trial, the right to intervene "when 
one has an interest in the success of either of the parties to the suit, 
or an interest opposed to both, is clear enough. Code Pr. art. 390. 
Young's right to remove the suit is not adversely affected by the 
fact that he appears as an intervenor, and if he has presented such 
a controversy as is contemplated in the foUowing section of Act 
1875, the motion to remand should, be denied: "When in any such 
suit mentioned in this section there shall be a controversy wholly 
between citizens of différent states, and which can be fully deter- 
mined as between them, then one or more of the plaintiffs or de- 
fendants actually intcrested may remove said suit into the circuit 
court." 

The intervenor claims that the pending suit, which he caused to be 



FBEIDLEB V. OHOTABD. 229 

removed, discloses several separable controversies which are wholly 
between himself and a citizen of another state, and which ean be 
fuUy determined as between them independently of the other citizen of 
that state ; that the issues he raises with Freidler can be determined! 
without Mrs. Chotard being a necessary party, or that the issues he 
raises with Mrs. Chotard can be determined for or against himself, 
independently of and without the présence of Freidler. Without 
adopting the methodfor division, suggested in his brief, of the several 
demands presented in his pétition, I think the following summary 
covers ail the controversies or issues he présents : 

(1) Shall the claim which he asserts to one-half of the stock, 
revenues, or on which the lessor's lien is prayed for, be allowed ; if al - 
lowed shall it be free from the rights asserted by Freidler, (2) In 
order to maintain his claim to the effects, or free from Freidler's de- 
mand, he, denying Freidler's ownership, présents an issue as to the 
légal effect of the agreement between Freidler and Mrs. Chotard on 
his rights, and as to its efifect between plaintiff and défendant in 
original suit. (3) Alleging his fear of collusion between Freidler and 
Mrs. Chotard to defraud him, he asserts his demands, and asks that 
they be recognized and made executory against ail parties for 10 
years, the period of his contract with Mrs. Chotard. Freidler put ail 
of the intervenor's demands at issue by a gênerai déniai. So far no 
issue is joiued between Young and Mrs. Chotard. 

In this court Mrs. Chotard may or may not answer Young's péti- 
tion. If she does not answer, and the court takes jurisdiction, he 
can put at issue and try, on default against her, ail the issues in- 
Tolved in his pétition. As the case now stands, are any of the con- 
troversies presented in the pleadings wholly between citizens of dif- 
férent states ? Can any one of the controversies be fuUy determined 
as between Young and Freidler, or between him and Mrs. Chotard, 
without ail three being necessary parties to the suit ? Are not the 
claims or demands set up by Young so intimately blended, and in- 
separably connected, with the mattei-s and issues asserted and denied 
by the parties to the original suit that no one of them can be taken 
up and tried without the judgment, whatever it may be, affecting, 
controlling, and binding ail three of the litigants as to ail the issues 
in the suit? 

Before further discussing thèse questions it may be well to say that 
the right, under the law and constitution, to remove the whole suit, 
when there is such a controversy disclosed, even though in removing 
the whole suit the circuit court finds it necessary to take jurisdiction 
of and to décide issues which are solely between citizens of the same 
state, and which .are entirely free from ail entanglements with de- 
demands of a non-resident citizen, since the décision in Barney 
V. Latham, 103 U. S. 205, seems no longer an open question. In 
that case the United States suprême court seem to bave considered, 
and to hâve reconciled, satisfactorily to themselves, this doctrine as 



230 FEDBKAIi BEPOBTEB. 

to the removal of the whole suit, containing issues, aome qf whîch are 
solely and exclusively between citizens of the same state, with the consti- 
tutional provision that the judicial power of the United States shall 
extend to "controversies between citizens of différent states." At 
any rate, sinoe that décision we are forbidden to question that, where 
a suit pending in tiie state court unités two separable controversies, 
one distinctly with a citizen of plaintifif's own state, and the other 
with a citizen of a diiïerent state, the cause may be removed. 

In diseussing the matter of separable issues, or in ascertaining 
whether such a separable controversy as is contemplated in the act 
of 1875 is presented by the intervenor, it should be kept in mind 
that Young asserts his owuership of the stock, etc., bis right to the 
exclusive management of the plantation business, his right to enjoy 
one-half of the revenues thereof for 10 years, and his right to hâve 
ail of his demands and claims made exeeutory against ail parties 
to the suit. This summary of his demands appears to me to forbid 
the idea that any court could allow or deny to him any of them with- 
out, at the same time, passing on controversies which, before his ap- 
pearance in the suit, existed solely between the plaintiff and défend- 
ant, or on matters alleged and denied by and between citizens of 
the same state, and which are inseparably blended with ail the items 
of the intervenor's demand, and to the allowanee of which ail the 
parties are necessary parties. 

In the case of lowa Homestead Co. v. Des Moines Nav. é B. Co. 8 Fed. 
Eep. 97, the complainant sued for a sum of money in a state court 
and claimed a spécial lien on certain lands. Litchfield, a citizen of 
New York, intervened in the suit to assert his ownership of the land, 
and to dispute the spécial lien, and caused the suit to be removed. 
Mr. Justice Miller, on hearing the motion to remand, said, if com- 
plainant saw fit to dismisa his claim for the spécial lien on the land, 
the suit would be remanded. The complainant dismissed the claim 
to the spécial lien, but after its dismissal the court, having improv- 
idently allowed Litchfield to file some other pleadings, had to pass 
upon a second motion to remand. The judges (McCrary and Love) of 
the Fifth circuit said, in considering the last motion to remand, that 
the first motion should hâve prevailed without any conditions what- 
ever; that the issues presented by Litchfield did not warrant the 
removal; that the case was easily distinguished from the Bamey- 
Latham Case. 

In Bailey v. Neio York Sav. Bank, 2 Fed. Eep. 14, the plaintiff, a 
widow, sued the bank for $25,000, alleged to be a deposit made for 
her account by her deceased husband. The bank caused Lewis 
Bailey, exécuter of Bailey, deceased, a citizen of Gonnecticut, to be 
made a party, and the bank, while laying no claim to the money, re- 
fused to pay it over to any one except under an order of court. The 
state court allowed the exécuter to remove the suit on the ground, as 
the judge said, that the bank was a mère stockholder, and the real 



TOBPEDo 00. V. Bonovau or olabundor. 231 

eontroversy was between citizens of différent states. On motion to 
remand, Justice Blatchfobd, holding that the bank vyas not a mère 
stockholder, but a necessary party to any judgment that might be 
given in the case, since the suit discloses no "eontroversy wholly be- 
tween citizens of différent states, and whicb can be fully determined 
as between them, without the présence of a défendant citizen of the 
same state with plaintiff, actually interested in such eontroversy. " 

In the pending suit, before the appearanee of Young, judgment 
could hâve been given in favor of either party without in any way 
binding or affecting Young's claims. His voluntary appearanee 
makes the dual eontroversy, new parties, and separable issues; but 
he claima nothing that is not intimately blended and eonnected with 
the matters actually in eontroversy between plaintiff and défendant, 
citizens of the same state. Mrs. Chotard, default having been taken 
against her by Freidler, stands as denying ail of the demands made 
by Freidler. So she will stand, as against Young's demand, should 
he take default against her. It is suggested in argument that she 
may not answer, or may admit Young's elaim; but her action cannot 
in this way be anticipated. If she does not answer, Young cannot 
try his intervention without putting her in default, and then she will 
stand, as she is presumed now to stand, in court as having denied ail 
of his claims. Ail three of the litigants bave controversies together, 
and against one another. The several things claimed by Young 
form, more or less, the subject matter of a eontroversy between 
Freidler and Mrs. Chotard, and he could not obtain a judgment in 
any court allowing him any one of the rights or things claimed, with- 
out such judgment operating upon and binding plaintiff and défend- 
ant as to matters and things about whieh they are actually disputing. 

Cause remanded. 



TOBPEDO Co. V. BOEOUGH OF ClAEENDOH. 
{Oireuit Court, W. D. Pennsylvania. January 21, 1884.) 

1. MoNiciPAii Corporation— Rbmedt fob Damagb Caitsbd by Unreasonablb 
Okdinakcb — Action at Law. 

The ordinary reraedy for an injury frora the opération of an unlawlul mu- 
nicipal ordinance is by an action at law, for complote redress in damages ia 
generally thus attainable. 

1. Same — Injunction Refuse». 

A borough ordinance forbids any person to convey or hâve, etc., within the 
borougb limits, any nitro-glycerine, (exoept enough to " shoot " any oil well 
within the borough, and this upon payment of a license fee,) under a penalty 
«f not less than $50, nor more than $100, for each offense, upon conviction be- 
fore the burgess or a justice of the peace. Plaintiff's works for the manufac- 
ture of nitro-glycerine are nine miles from the borough, and a magazine for its 
Storage is one mile from the borough, on the opposite side. Plaintiff'^ em- 
ployés conveying nitro-glycerine from its works to the magazine ^long public 



282 FEDSBAL BEFOBTEB. 

bighways, tlirough the borough limits, were arrested and flnod, but thèse judi- 
clal proceedinga were removed into the proper county court, and are there 
pending. The plaintiiï, alleging that the ordinance is unreasonable, unauthor- 
ized, and void, and injarious to its business, filed a bill in equity against tlio 
borough to restrain the enforcement thereof, etc. ïleld, that the case was not 
one for équitable relief, and, on this ground, a preliminary injunction rel'used. 

In Equity. Sur motion for a preliminary injunction. 

Brown é Stone, for complainant. 

D. I. Bail, for défendant. 

AcHESON, J. This is a suit by the Torpédo Company, a corpora- 
tion of the state of Delaware doing business in the state of Penn- 
sylvania, against the incorporated borough of Clarendon, in Warren 
county, in the latter state, to restrain the enforcement against the 
plaintiff of an ordinance of the borough, enacted April 24, 1882, 
which déclares it to be unlawful for any person to "store, bouse, con- 
vey, carry, or bave in his or her possession," within the borough 
limits, any nitro-glycerine, (except enough to "shoot" any oil well in 
the borough, on payment of a license fee of $10,) under a penalty of 
not less than |50, nor more than $100, for each offense, upon con- 
viction before the burgess or a justice of the peace. The proper 
opération of oil wells, it seems, requires that torpedoes containing 
nitro-glycerine be exploded from time to time in the wells. The 
plaintiff bas established works for the manufacture of nitro-glycerine 
in the county of Warren, nine miles from Clarendon, and on the 
opposite side of the borough there bas been located a magazine of 
one of its customers for the storage of nitro-glycerine for the supply 
of the trade in the oil territory known as the Clarendon field, lying 
in and about the borough. The plaintiff allèges that to reach this 
magazine with supplies of nitro-glycerine it is necessary to traverse 
certain highways within the borough limits, but which do not pass 
through the thickly-settled portions of the town. To insure safetj 
in transportation, the plaintiff has observed commendable care in 
providing wagons constructed specially for the purpose, with appli- 
ances well adapted to reduce the danger of explosion to the minimum, 
and it is alleged by the plaintiff that thèse précautions secure the 
public from ail risk. The plaintiff began business after the passage 
of the ordinance, and the magazine was located so late as May or 
June, 1883. Employés of the plaintiff hâve been twice arrested and 
fines imposed for violations of the ordinance, but thèse judicial pro- 
ceedings hâve been removed into the proper court of Warren county, 
and are there now depending. The plaintiff claiming that the régu- 
lation in question is unreasonable and oppressive, — abridging its légal 
right to use the public highways of the borough, and injuring its 
business, — and that the ordinance is without législative warrant and 
void, prays the court for an injunction to restrain the borough from 
enforcing the same against the plaintiff, and from arresting its em- 
ployés, or bringing or prosecuting any action, civil or criminal, against 
them for "à violation thereof. 



WASHBURN & MOBN MANUP'o CO. V. WILSON. 233 

The affidavit in behalf of the défendant in opposition to the allow- 
ance of the présent motion, sets forth facts in vindication of the oi- 
dinance as wise and reasonable, and controverts some of the material 
allégations of the bill. But were it clear that the ordinanee is void, 
is this a case for équitable relief ? Undoubtedly courts of equity of ten 
interdiet the unlawful exercise by municipal corporations of their 
powers ; and, possibly, cases of such peculiar hardship from the en- 
forcement of a void ordinanee in restraint of trade might arise, that 
a court of equity would feel moved to interpose, by injunction, even 
before its illegality had been established at 1-aw. But such cases would 
be exceptional. Dill. Mun. Corp. § 727; Ewing v. City of St. Louis, 
5 Wall. 413 ; High, Inj. §§ 1242, 1244. The ordinary remedy for an 
injury from the opération of an unlawful municipal ordinanee is by 
an action at law, for complète redress in damages is generally thus 
attainable. 

The learned counsel for the plaintiff rely on Butler's Appeal, 73 
Pa. St. 448. But it is not an authority, it seems to me, for the prop- 
osition that an injunction is a proper remedy for the injury of which 
the plaintiff complains. That was a case of a clearly illégal exercise 
by city councils of the taxing power. I hâve been referred to no préc- 
èdent, nor hâve I been able to find any, where a court of equity in 
such a case as the présent bas granted the relief the plaintiff seeks. 
But in several analogous cases such redress bas been denied, and the 
aggrieved party turned over to his légal remédies. Bumett v. Craig, 
30 Ala. 135; Gaertner v. City of Fond du Lac, 34 Wis. 497; Cohen v. 
Goldsboro, 77 N. C. 2; Broivn v. Catlettshurg, 11 Bush, 435. Hère 
the plaintiff's légal remédies are, I think, ample. One of thèse bas al- 
ready been invoked ; for by certiorari or appeal the proceedings against 
the plaintiff 's employés for violation of the ordinanee hâve been re- 
moved into the proper state court, and are there pending. It does not 
appear to me that the plaintiff is likely to suatain any injury which 
may not be fuUy and adequafcely compensated by an action for dam- 
ages, should it be adjudged that tbe ordinanee is invalid. 

The motion for an injunction is denied. 



Washbubk & MoEN Manup'g Co. v. Wilson. 
{Oireuit Court, 8. D. New York. January 2, 1884) 

C!Oin'»A.CT— CONBTRUCTIOK — DEPENDENT AKD INDEPBNDBNT StiPITLATIOH. 

The Washburn & Moen Manufacturing Company granted Wilson an exclu- 
sive licehse to manufacture bale-ties under their patent, in New Tork city, for 
•which he agreed to pay thera certain royalties every month. He afterwaras in- 
vented a splicing-machine, and made a written agreement with the company, 
hy the terms of which he was to assign to them for JSOO the patent for his 
machine vhen securcd, and they were to grant him back a liceufe to use the 



234 FEPERAL BEPOETER. 

machine, under certain conditions, while he was to continue payîng the royal- 
ties. The patent was obtained, and the assignments were made according to 
agreemeut, but Wilson réfused to pajthe royalties. The manufacturing Com- 
pany thereupon brought suit to restain him frotn using the splicing-machine 
till the royalties -were paid ; but, held, that the licenae to use the machine was 
independent of the agreeraent to pay the royalties, WhiCh had to do only with 
the previous license to manufacture bale-ties. 

In Eq^uity. 

W. B. Hornblower, îor orator. 

Edwin S. Babcock, for défendant. 

Whebler, J. The orators owQ reissued letters patent No. 7,388, 
dated November 7,1876, and original letters patent No. 66,065, dated 
June 25, 1867, for wire bale-ties, and December 6, 1878, granted to 
the défendant an exfilusive license for the eity of New York and its 
neighborhood to make such ties of wire that had been before used for 
binding baies, for the term of one year, and agreed to license him for 
an additional year, for which he agreed to pay on the fifteenth day 
of each month a royalty of 10 cents for each 250 ties made the last 
previdus month. The défendant invented a machine for splicing wire, 
made application for a patent, and on the twelfth day of June, 1879, 
while the application was pending, agreed with the orators that they 
should hâve the invention, when he got a patent, for $300, and grant 
him the right to use his machine in the United States except for unit- 
ing the ends of bale-ties in position around baies, and not to license 
any one else to make ties under their patents, nor engage in splicing 
wire themselves, within 25 miles of New York city, and that he should 
continue to pay the royalties on the former patents during their term 
on ail ties he should make and not sell to the orators. His patent 
was granted and assigned to the orators, and a license back for his 
machine .executed, according to the agreement, but he did not con- 
tinue to pay the royalties according to the agreement, and they 
brought suit andrecovered judgmentfor $728.71 arrears, with $313.15 
costs. This suit is brought to restrain the défendant from using his 
machine without paying thèse royalties. Thèse agreements were in 
writing, signed by the parties, and contained some stipulations other 
than those mentioned, not hère material, but none that the license 
should cease on or be revocable for non-payment, and no express 
condition on the subject of the license. 

It is claimed in behalf of the orators that the grant of the license 
by the orators, and the agreement to pay the royalties by the défend- 
ant, were so far dépendent stipulations that the law would imply a 
condition that the benefits of one should not be enjoyed without a 
reciproeal performance of the other; or that such enjoyment without 
performance would be so unjust and inéquitable that a court of equity 
should restrain the enjoyment until performance should be made or 
secured. This claim is not acquiesced in by the défendant, but is 
disputed. The court cannot make nor unmake, even in equity, the 
eontracts of the parties; at most, it can only interpret apd enforc 



POGO r. ïiSK. 238 

them. Thîs is ail that the orators claim; but they îùsist that thèse 
contracts should be so interpreted as to require performance by the 
défendant, if he is to enjoy the license. If the royalties were to be 
paid for the privilèges of the license, so that one was the exact con- 
sidération for the other, there might be reason founded in some au- 
thorities for the orators' view. Withcrs v. Reynolds, 2 Barn. & Adol. 
882; Chanter v. Leese, 5 Mees. & W. 698 ; Brooksv. Stolley, 3 MoLean, 
523. Thèse royalties were stipulated for in the first contraet before 
the subject of the license under considération was in existence far 
enough to be mentioned or alluded to in it. The agreement to pay 
them was the considération for the grant of the license under the 
patents which the orators then owned. The a^eement to assign the 
patent for $300 appears to hâve been the substantial considération 
for the license under that patent. The term of the license is the 
term of the patent. The right to the royalties expires with the term 
of the former patents. The défendant assigned his patent to the 
orators with the agreement that they should grant him back this 
license. In effect it was the same as if he had assigned aU the rights 
secured by his patent, except those secured by the grant of the 
license, or had assigned the patent reserving those. rights. Had the 
conveyance taken this form there would bave been no grant of a 
license whatever which could hâve formed the considération for the 
royalties, and no ground to claim that the machine of défendant 
should not be used unless the royalties should be paid. This is the 
substance of the arrangements made. The défendant never parted 
with the right to use his machine. By the instrument by which it 
was provided that he should assign his patented invention, it was 
provided that this right should be reassigned. He assigned the in- 
vention, and the right was reassigned. So this right was always 
his; he did not buy it, nor hire it, but created it under the law, and 
never agreed to pay anything for it, and cannot legally be compelled 
to pay anything as a condition for enjoying it. 
Let there be a decree dismissing the bill, with costs. 



Fooa r. Fisk. 
{Oirettii Court, 8. D. iKrtt York. January 25, 1884.) 

Pkbi-tminaîit JfixAMiHATioNS— PkacticB m Statb and Pedbkal Courts. 
The examination of a party to a suit as a witness for the adverse party, pend- 
ing in a state court under a provision of the Code of Procédure for that state, 
may be continued af ter the removal of such suit to the fédéral court, though 
such an exaraination would not be allowed under tlie practice of the fédéral 
court, had the actioa been origina^Ily brought thure. 



236 FEDEBAL BEFOBTEB< 

2. SAMB— SUETirAL OF PEOCEBDINaB TakEN Df StATE CotTRTB AfteK He 
MOYAI,. 

The removal act of 1875 carefully saves to both parties the beneflt of ail pro- 
ceedings taken in ttie action prior to its removal from tlie state court, and by 
section 4 of said act, it is provided that when any suit is removed from a sate 
court to a circuit court of tlie United States, ail injunction orders and othej- 
proceedings had in such suit prior to its removal shall remain In fujl force aiiù 
effect until dissolved or modifled bj the court to which such suit has beeu re- 
moved. 

At Law. 

John R. Dos Passas, for plaintiff. 

Miller, Peckham é Dixon, for défendant. 

Wallace, J. At the time this suit was removed from the state 
court by the défendant his examination as a witness was pending 
under an order of that court, directing him to appear and be exam- 
ined before the trial as a witness at the instance of the plaintiff. By 
the Code of Civil Procédure of this state a déposition thus taken may 
be read in évidence by either party at the trial of the action, and also 
in any other action brought between the same parties, or between 
parties claiming under them, or either of them, and has the same 
effect as though the party were orally examined as a witness upon 
the trial. Section 883. The plaintiff now moves for leave to pro- 
ceed with the examination of the défendant pursuant to that order, 
and the défendant resists the application upon the ground that the 
examination of a party before the trial as a witness for the adverse 
party is not permitted by the practice of this court. 

It is well settled in this circuit that section 914, Eev. St., for con- 
forming the practice of the fédéral courts in suits at common law as 
near as may be to that of the state courts, does not apply to the tak- 
ing of testimony, because the statutes of congress cover the whole 
subject; and thèse statutes not only do not provide for the examina- 
tion of a party as a witness for the adverse party before the trial in 
actions at law, but do not permit évidence thus obtained to be used 
upon the trial as a substituts for the oral examination of the wit- 
ness. Eev. St. § 861; Beardsley v. Uttell, 14 Blatchf. 102; U. S. v. 
Pings, 4 Fbd. Eep. 714. If, therefore, this were an action originally 
brought in this court, the plaintiff should not be permitted to proceed 
with the examination of the défendant. But the removal act of 1875 
carefully saves to both parties the benefit of ail proceedings taken in 
the action prior to its removal from the state court. Section 4 dé- 
clares that when any suit is removed from a state court to a circuit 
court of the United States, ail injunctionorders and other proceedings 
had in such suit prior to its removal shall remain in f uU force and ef- 
fect until dissolved or modifled by the court to which such suit shall 
be repioved. By force of this provision the plaintiff is entitled to 
proceed with the defendant's examination, unless for some substan- 
tiàl' çeason the revisory power of this court should be exercised to de- 
prive him of the benefit of the order he has obtained and the proceed- 



ASHUELOT SAVINGS BANK V. FROST. 237 

ing he has instituted. It lies with the défendant, therefore, to pré- 
sent some çontroling reason to the judicial discrétion for denying to 
the plaintiff the right which he had secured, and of which he could 
not be deprived except by a removal of the suit. That both parties 
hâve deemed this proceeding an important one is obvions from the 
tenacity with which the right to pursue it has been contested, 

It appears by the record and moving papers that the défendant has 
been defeated in efforts to vacate the order for his examination by 
the suprême court at spécial term and at gênerai term, and by tîie 
court of appeals; and that, although for a period of 18 months he 
was willing to submit his rights to the state courts, he invoked the 
jurisdiction of this court when there was no other resource left by 
which he could escape an examination. Certainly, there are no 
equities which should induce this court to deprive the plaintiff of the 
fruits of his long struggle. If the examination of the défendant could 
Bubserve no useful purpose to the plaintiff, undoubtedly the défend- 
ant should not be subjected to it, or be put to the annoyance or in- 
convenience which it might entail upon him. But although the de- 
fendant's testimony, when obtained, may not be of service to the 
plaintiff to the full extent it would be in the state courts, it may, 
nevertheless, be of some value. If it cannot be used on the trial of 
this action as a substitute for the oral examination of the défendant, 
it can be as the déclarations of a party; and it can also be used in 
other suite in the courts of this state between the same parties, or 
their privies, pursuant to section 881 of the Code. There seems to 
be no reason, therefore, for dissolving or modifying the order of the 
state court, or for denying to the plaintiff the benefit of the proceed- 
ing whioh was pending when the défendant removed the suit. 

The moticHi is granted. 



ASHUBLOT SaVINGS BaNK V. PSOST. 
{Oireuit Court, D, New Hampshire. 1884.) 

CoNVETANOB m LiEC OF AttaChmbnt Held not ts 'Fkato of Cbhditohb. 

■Where a bank levied an attdchtnent upon lands owned'by its tréasurer who 
was under liabilities to it far exceeding in amount theryalufr et th^^land, a^d 
in order to save the trouble of légal proceedings he made a deed of the land to 
the bank in lieu of the attachment, 7jÊid, that creditbràbf his Whô aflerwards 
attached the land could not avoid the conve^nceto the baa^'" ' - : >; -i 

At Law. 

Batchelder é Faulkner, for plaintiff. 
A. S. Waite, for défendant. 

LowELL, J. In this writ of entry the plaintiff corporation demanda 
several parcels of land in the county of Cheshire and state of New 



2S8 FSDBBAIi BEFOBTEB. 

Hampshire, said to be worth about $ 10,000. The parties bave waivert 
trial by jury. The évidence is that BUery Albee had been treasurer 
of the savings bank for many years, and in March, 1881, it was dis- 
covered that he had embezzled the money or property of the bank to 
an amount which was believed to be, and which has proved to be, 
not less than $80,000. March 16, 1881, he made to the bank a 
deed of the land in question in the usual form of an unconditional 
conveyance. The défendant was a créditer of Albee, and attached 
the lands after the deed had been made and recorded, and having ob- 
tained judgment caused them to be duly set off to him on the exécu- 
tion. The single question in this case is whether the deed to the 
bank was in fact a mortgage. It is agreed by counsel that the law 
of New Hampshire makes every deed which is given upon a secret 
condition voidable by the creditors of the grantor, however honest the 
transaction may be, and though the condition is merely a paroi de- 
feasance. Coolidge v. Melvin, 42 N. H. 510, and cases; Winkley v. 
mu, 9 N. H. 31; Ladd v. Wiggin, 35 N. H. 421. 

The grantor, Albee, testifies for the défendant by déposition : "I do 
not understand that there was any considération, except that they 
were, as I understand, giveh as collatéral security to secure my 
bondsmen." By "they" he means the deed; for, though there was 
but one, he had before testified that he did not remember how many 
there were. The déposition of this witness is not very satisfactory, 
because he remembers but little with any positiveness, and speaks of 
"impressions" chiefly. He further says that he did not know the 
amount of his indebtedness to the bank at the tirae, and that no val- 
uation was agreed on at which the land was to be taken. On the 
other side, the évidence is that the bank had laid a first attachment on 
the land ; that the amount of défalcation was approximately known, 
and far exceeded the value of the property ; that Albee himself, know- 
ing of the attachment, offered to give the deed to save the plaintiff 
bank the trouble and expense of légal proceedings; and that, accord- 
ingly, the deed was given and taken without any condition of any 
sort. If such was the transaction, the inference is that the deed was 
given, instead of the attachment, as a payment so far as it would go, 
for the debt. The plaintiff might be required to account in some form 
of action fgr the full value if Albee or his sureties should be ready to 
pay the remainder, but it would be as payment, and not as security, 
that the crédit would be due. 

I consider the plaintiff 's case to be made out by a decided prépon- 
dérance of the évidence. Verdict for the plaintiff. 



TEXAS & 8T. L, BT. 00. V, BUST. 289 



Texas & St. L^ Ry. Oo., in Missouri and Arkansas, ». Rust and 

another. 

{Oireuit Court, E. D. Arkansas. Oçtober Term, 1883.) 

1. CoNTRACT— Stipulated Damagbs pok Failurb to Pbrpokm. 

A provision in a contract to build a railroad bridge tliat, in case of non-com- 
pletion of tlie bridge or providing a crossing for trains by a given date, the sum 
of $1,000 per weeli should be deducted froji the contract price of the bridge for 
the time its completion or provision for crossing trains is delayed beyond thaï 
date, ia a stipulation for liquidated damages. 

2. Samb— Dklay— GooD FArrH. 

In such case, if the contractors act in good faith, and the delay results from 
causes beyond their control, they will not be liable for damages in excess of 
the stlpulated amount. 

3. Same — AssuMiua Risks— BxcnsB. 

The fact that the contractors were retarded In the work by high water, sicli- 
ness of hands, and sunlcen logs encountered in sinlcing piers, does not excuse 
them from performance of their contract. They assumed thèse risks when 
they executed the contract, without a provision exempting them from the con- 
séquences of such casualties. 

4. Same— Construction ov Contract— Province of Court and Jury. 

It is the duty of the court to détermine the construction of a contract. But 
where it has relation to a trade, profession, or business' of a technical character, 
and is expressed in terma of art, or in words havîng a technical or peculiar 
seilse in such trade, profession, or business^ resort must be had to the tesiimony 
of experts, or those acguainted with the particular art or business to which tUç 
words relate; and when such testimony is conflicting, the question of tho 
meaning of such terma and words must be referred to the jury. 

5. Samb — Waiver — Silence. 

A waiver is not to be implied from the silence of one who is under no obli- 
gation to speak. The intention to waive a right must be eatablislied by lau- 
guage or conduct, and not by mère conjecture or spéculation, 

6. Same — Abditional Wohk — Extending Timb. 

If, atter a contract is made for building a bridge by a given day, the owner 
of the bridge directs the contracter to make additions or changes, or do work 
on the bridge not covered by the contract, which will require longer time to 
complète the bridge, the timè necessary to do such extra work must be added to 
the contract time allowed for the completion of the work, 

At Law. 

John McClure, H. K. dt N. T. White, and Phillips <ê Stewart, for 
plaintifif. :■, : 

U. M. é G, B. Rose and M. L. Bell, for defehdants. 

Caldwell, J., (charging jury.) On the twenty-aecond day of April, 
1882, the parties entered into a written contract for the construction, 
by the défendants for the plaintiff, of a railroad bridge across the 
Arkansas river, at the price of $305,000. Differencesarose between 
them as to their relative rights, dufcies, and obligations under the 
contract, which resulted in the institution of this suit. The matters 
in controversy between them can best be brought to your attention by 
stating the defendaht's elaims first, which may be stated thus: 



240 FESEBÂL BEFOfiTSB. 

1.. Contract price for bridge, ..... 

2. Por sinking piers, other than center pier, below 60 feet, at 

$200 per vertical foot, as per contract, - . - 

3. Extra for sinking center pier 10 feet below 60 feet, 

4. Extra for draw protection, ..... 

5. Extra for iron stringers, - . - - 

6. Extra for two shore abutments, . . . - 

7. Extra for additional material for piers sunk below 60 feet, 

8. Extra for trestle approaches, - - - 

$349,587 70 

Against thîs sum the défendants admit crédits as foîlows : 

1. For reduced height of piers, - - - - $ 8,100 00 

2. For material and labor to complète bridge after défendants 

quit work, - - ' 6,000 00 

8. Payments on estimâtes, .... - 267,959 79 



S305,000 00 


1,000 00 


15,000 00 


21,530 00 


2,646 00 


1,600 00 


1,900 00 


911 70 



$282,059 79 

This makes the balance claimed by the défendants as due to them 
from the plaintiff $67,527.91. The parties agrée as to the amount 
paid défendants on estimâtes, i. e., $267,969.79. The items in the 
défendants' accounts which the plaintiff disputes are, the charge for 
sinking center pier below 60 feet in excess of $200 per vertical foot; 
the whole of the charge for a draw protection ; the whole of the charge 
for iron stringers for draw span; the whole of the charge for extra 
materials for piers sunk below 60 feet; and the charge for shore 
abutments is said to be excessive to the amount of $200. 

The plaintiff's claims against the défendants may be stated thus : 

1. Payments made o.i estimâtes, .... $267,959 79 

2. Weekly réduction in price of bridge for its non-completion, 39 

weeks and 4 days, at $1,000 per week, - - 39,570 88 

3. Claim for gênerai damages for failure'to complète bridge, . 200,000 00 

4. For money expended in completing bridge after défendants 

quit work, ...... 15,075 61 

6. Keduction in contract price of bridge on account of reduced 

height of piers, - . • - . .8,100 00 

The défendants dispute the plaintiff's claim for damages, includ- 
ing the $1,000 per week specifled in the contract, on the ground that 
plaintiff waived the same; they admit their liability for what it cost 
the plaintiff to complète the bridge after they quit work upon it, but 
they say the amount charged therefor above $6,000 is excessive. 
The provisions of the contract, and the law applicable to the matters 
in controversy between the parties, will now be stated in their order. 
The contract contains this provision : 

"In case of non-completion of the bridge upon îTovember 1, 1882, or 
providing a crossing for trains by said date, then in sucli event the sum of 
$1,000 per week for the period oftimesuchcompletion or provision for cross- 
ing of trains is delayed shall be deducted from said contract price; and in 
like maiiner, should the bridge be completed at an earlier date than Novem- 
ber 1, 1882, then in such event the sumof $1,000 per week shall be added to 



TEXAS & SX. L. Bï. 00. V. BUSI. 2él 

said contract price, for the period by which said fixed date of completion 
shall be anticipated." 

It is a conceded fact in the case that the bridge was not completed 
60 trains could cross on it until the fourth day of August, 1883, and 
that no other mode of crossing trains was provided by the défendants 
before that time; and the plaintiff claims that, under the clause of the 
contract I hâve quoted, it is entitled to a réduction of $1,000 per 
■week in the contract price of the bridge, from the first of November 
1882, to the fourth day of August, 1883, when the bridge was so far 
completed as to admit of the passage of trains over it. It is open to 
parties when they make a contract to agrée on the amount to be paid 
or allowed by either to the other as compensation for a breach of it. 
Sometimes stipulations providing for the payment of a fixed sum 
for a breach of contract are termed penalties, and go for nothing for 
reasons not necessary to be stated hère. But where the damages for 
the breach of the contract are uncertain in their nature, or difficult to 
be proved with any degree of accuracy, and the amount fixed by the 
contract is not grossly in excess of a probably just compensation, 
that sum will be taken as the true amount of the damages, and is 
called in légal parlance liquidated damages. 

The difficulty of ascertaining, with any degree of certainty, the 
damages the plaintiff sustained, is made apparent by the testimony 
of the witnesses in the case, who estimated the damages from half a 
million of dollars down to a comparatively small sum. You will ob- 
serve the contract does not provide for the payment of a large sum 
in groBB for a failure to bave the bridge completed on the day named, 
or for any mère technical breach of the contract, If it had done so 
a différent question would be presented. The damages fixed by the 
contract do not accrue for failure to complète the bridge on a given 
day, but for "non-completion of the bridge, or of providing a crossing 
for trains by said date," which latter alternative could hâve been 
complied with by providing a boat to transfer trains; and upon failure 
to do either, the damages are not given in one gross sum the day the 
default accrues, but are graduated according to the length of time the 
breach continues, and are not excessive or unreasonable in amount. 
You are therefore instructed that the contract fixed the amount of 
the défendants' liability for non-completion of the bridge, or failure 
to provide a crossing for trains by the first of November, 1882, and 
afterwards. That amount is $1,000 per week from that date until a 
crossing for trains was provided. As the défendants seem to hâve 
acted in good faith, and the delay resulted from causes beyond their 
control, the plaintiff will not be permitted to show the damages were 
more, nor the défendants that they were less, than the stipulated 
amount. Nor does the fact, if it is a fact, that the défendants were 
unexpectedly retarded in the work on the bridge by high water, sick- 
ness of hands, and sunken logs, encountered in sinking the piers, ex- 
cuse them from performance of their contract, or from any of its 
T.19,no.4— 16 



242 FEDESAIi BEPOBTKB. 

obligations. Against thô conséquences of suoh casualties they mîght 
hâve guarded by a provision in the contract. Not having done so, it 
is not in the power of the court or jury to relieve them. Dermott v. 
Jones, 2 Wall. 1, 

The learned counsel for the plaintiff has argued that tbis clause of 
the contract relates to the price to be paid for the bridge, which it is 
said is made to dépend on the time of its completion, and that the 
$1,000 per week is a "déduction from the contract price" of the bridge, 
and not damages for its non-oompletion. In construing a contract 
every part of it must be taken into considération. It is perfectly obvi- 
ous from the face of the contract, as well as from the correspondence 
which preceded its exécution, that $305,000 was deemed by both par- 
ties a fair and just price for the bridge, and that the time fixed for 
its completion was thought to be reasonable. In view of thèse facts 
it is unreasonable to suppose that the parties deliberately agreed that 
the more time and money it took to build the bridge, beyond what 
the contract contemplated, the less price the contractors should re- 
ceive for it by the amount of $1,000 per week; and that over and 
above the loss of this sum, which might absorbthe price of the bridge 
and more too, -they should beliable for ail damages sustained bynon- 
completion of the bridge for the same period this $1,000 per week 
was deducted. The contract does not mean this. The $1,000 per 
week is damages, and it is none the less so because it is to be "de- 
ducted from the contract price." 

Witnesses were examined, without objection from either side, on 
the question of damages. On the case as it stands such évidence is 
irrelevant, and is excluded from your considération. You will there- 
fore rejeot in toto the plaintiff's claim of $200,000 for gênerai dam- 
ages. 

The provisions of the contract bearing on the question whether the 
défendants are entitled to compensation above $200 per vertical foot, 
for sinking the, center pier below 60 feet, are the foUowing: 

"A center pier consisting of wrought-iron cylinders, sunk to a depth of 
sixty feet below low water into the compact material of the bed of the 
river, making a total height of 100 feet from base of pier to bridge seat, 
the center column being seven feet in diameter, and the six outside columns 
four feet in diameter. * * * Seven intermediate piers consisting each of 
two wrought-iron cylihders, seven feet in diameter, sunk and filled in man- 
ner provided for center pier. * * * jf, during the progress of sinking 
of piers, it ^all be decided to found any of them at a less depth than said 
sixty feet below low water, then in such event the sum of $200 per vertical 
foot of pier for said reduced height shàll be deducted from contract priée, 
and in like manner should it be decided to sink to a depth below sixty feet, 
and not below seventy feet, then in that event there shall be added to the 
contract price said sum of $200 per vertical foot of pier." 

The défendants' contention is that the word "piers" in the last of 
thèse clauses, in the understanding and usage of engineers and 
bridge builders, does not include the center, or draw pier. The evi- 



TE2AS as ST. L. BT. 00. V. BUST. 243 

dence shows that the différence in the cost of sinking the center ànd 
any other pier is as three and a half or four to one. It is the duty 
of the court to détermine the construction of a contract, and this 
duty it is usually able to perform without the aid of a jury or ex- 
trinsie évidence. But it net unfrequently occurs that contracts hâve 
relation to a trade, profession, or branch of business of a technical 
character, and are expressed in terms of art, or in /words having a 
technical or peculiar sensé in such trade or business, with which the 
court is not familiar. In such cases resort must be had to the testi- 
mony of experts, or those aoquainted with the particular art or busi- 
ness to which the words relate, and when such évidence is conflict- 
ing, as it is in this case, the question of the meaning of such terms 
and words in the contract must be referred to the jury. 

It is under the opération of this rule that it becomes proper for the 
court to refer to you for décision thèse questions : (1) Whetber the 
word "pier," as used in that clause of the contract providing for the 
sinking of "piers" below 60 feet, at the option of the plaintiff, doesor 
does not inelude the center or draw pier; (2) whether a contract 
toconstruct "a 355 feet rectangular wrOught-iron truss-draw" requires 
the main stringers for such draw-span to be constructed of iron; and 
(3) whether the contract to built the "bridge complète" included a 
draw protection? 

You hâve heard the testimony of the engineers and bridge builders 
who where called as experts, and of the parties who made the con- 
tract, and from this évidence you will détermine thèse questions. If 
you find the word "pier" in the clause referred to did not inelude the 
center or draw pier, and that the sinking of that pier below 60 feet 
was not provided for in the contract, then you will allow the défend- 
ants the reasonable value of their labor and materials used in sinking 
the center pier.l)elow the depth of 60 feet; and you will make a like 
allowance for the draw protection and iron stringers for the draw 
span, if you find they were not included in the original contract. 
One having no knowledge of the science of engineering or bridge 
building would construe the word "piers" in the clause of the con- 
tract under considération to inelude ail the piers in the bridge ; and 
you will 80 construe it, unless it is shown by a prépondérance of évi- 
dence that among engineers and bridge builders it has in the con- 
nection in which it is hère used a particular or technical meaning 
which limita and restricts it to the piers which support the ûxed 
spans. 

In relation to the questions whether the "draw protection" and the 
"iron stringers" for the draw span are called for by the contract, I 
call your attention to this clause of the contract: "Flans, diagrams, 
and detailed spécifications embodying the abore stipulations, which 
shall meet the approval of the chief engineer, will be promptly fur- 
nished upon acceptance hereof." 



244 FEDERAL BEPOBTEB. 

The plaintiif claîms that "plans, diagrama, and detailed spécifica- 
tions" were fumished by défendants under this clause of the contract 
and submitted to and approved by plaintiff's chief engineer, and that 
the detailed spécifications thus submitted contained this provision : 
"The draw protection to consist of two timber cribs, 34 feet by 30 
feet, as shown on drawings, sunk to bed of river, fiUed with oak piles 
driven to a firm bearing; the cribs to be carried up to level of ordi- 
nary high water and fiUed with rip-rap stone;" and that the plan 
and diagram furnished conformed to this spécification and showed a 
draw protection. And the same spécifications contain this provis- 
ion: "The trusses of the draw to be built entirely of wrought-iron, 
floor beams and main stringers of iron. * * *" If you find the 
spécifications submitted to and approved by the plaintiff's chief en- 
gineer, under the contract, contained the clauses I hâve quoted, then 
it is quite clear the défendants themselves understood the contract to 
include the draw protection, and that the "main stringers" of the 
draw span were to be "of iron." 

Under the clause of the contract which I hâve quoted the "plans, 
diagrams, and spécifications," when submitted to and approved by 
the chief engineer, became a part of the contract, and whatever is in- 
cluded in them is included in the contract; and if yoti find the spéci- 
fications submitted by the défendants under the contract to the 
plaintiff's engineer and approved by him contained the provisions I 
hâve quoted then you oan make no extra allowance to défendants for 
the "draw protection" or for "main iron stringers" for the draw span. 

The défendants say the plans and spécifications in évidence are 
not those originally furnished under the contract, but a copy subse- 
quently made in which the draw protection and iron stringers are 
called for in pursuance to an agreement to furnish them as extras, 
made after the first plans were delivered. This is denied by the 
plaintiff, and you will settle this in common with ail other disputed 
facts. 

I now come to the claim of the défendants that the sum of $1,000 
per week stipulated for in the contract for non-completion of the 
bridge was waived by mutual consent of the parties. If one in pos- 
session of a right conferred either by law or contract, knowing his 
rightô and ail the attendant facts, does or forbears to do something 
inconsistent with the existence of the right or of his intention to rely 
upon it, he is said to hâve waived it. No man is compelled to stand 
on a right which the law or his contract gives him. Parties hâve 
the same right to add to or vary a contract after it is made that 
they had to make it originally. The burden is on the party assert- 
ing a waiver Or any modification or altération of a contract to prove 
it. It is not necessary to show an express agreement for the waiver 
or mo4ification; like any pther fact, it may be proved by circum- 
stances, such as the acts or language of the parties, which,. of course, 



TEXAS âc ST. L. BT. 00. V. BUST. 245 

includes their correspondenee and any other facts whîch throw light 
on the question. 

The right of the plaintiff under the contract to the $1,000 par week 
for the non-completion of the bridge is a valuable right of which it 
is not to be deprived without its consent, either expressed or implied. 
What inducement or considération was there for the plaintiff to waive 
its right to ail damages for non-completion of the bridge ? It was 
the duty of the défendants, under the contract, to go forward and com- 
plète the bridge, and this was a continuing duty. They had no right 
to demand of the plaintiff a relinquishment of its right to damages 
as a condition of going forward with the work. The contract does 
not state when the $1,000 per week is to be deducted from the con- 
tract priée, and the plaintiff was not bound to deduct it from the 
monthly estimâtes; and a failure, therefore, to make a claim for it, 
from month to month, is not sufficient évidence of a waiver. A 
waiver is not to be implied from the plaintiff's silence, because there 
was no obligation on the plaintiff to say anything on the subject. 
The intention to waive a right must be established by language or 
conduct, and not by mère conjecture or spéculation. You will re- 
member that it is not the province of courts and juries to make con- 
tracts for parties, or to alter them after they are made, but to enforce 
them as the parties made them. You should not, therefore, let any 
supposed considérations of hardship influence you to find a waiver 
upon insuffieient or unsatisfaetory testimony. It may be that $1,000 
a week was more damages than plaintiff actually sustained for some 
weeks after the first of November, 1882, but, on the other hand, it is 
obA'ious that that sum is greatly less than the damages that accrued 
weekly after the completion of the road, which occurred some weeks 
before the bridge was completed. But there may hâve been a par- 
tial or limited waiver of this right, or rather an extension of the 
original contract time for completing the bridge, in a mode to which 
I will now call your attention. 

If the plaintiff directed the défendants to make additions or changes, 
or do work on the bridge not covered by the contract, and which would 
require longer time to complète the bridge, and this fact was known 
to both parties, then it must be implied that both parties consented 
to suçh an extension of time as was necessary or reasonable for mak- 
ing such additions or changes, but no more. Manu/' g Co, v. U. S. 
17 Wall. 592. If such orders for additions or changes in the bridge 
were given by the plaintiff, and the défendants, with good faith and 
with reasonable diligence and adéquate force and appliances, per- 
formed such extra work, then the time required to do the same must 
be added to the contract time allowed for completion of the bridge ; 
as, for instance,, if you ûnd additions and changes were made at plain- 
tiff's irequest, ;and that the time necessary to make them was, eay one 
week, then the time at which the $1,000 per week was to commence 
to accrue under the contract would be postponed one week. You are 



246 FEDERAL REPORTER. 

the judges of the facts, the weight of évidence, and the credibility of 

witnesses. 

The jury found a verdict of $2,489.97 for the plaintiff, which neither 
party sought to disturb. 



Bradley and wife v. Hartford Stbam-Boilbr Inspbotion & Ins. Co.' 
(Oireuit Court, E. I), Pennsylvania. December 22, 1883.) 

1. Neoliqence— Explosion of Boiler — Liability of Public Inspectors. 

A corporation authorized by statute to insure and also to inspect steam-boil- 
ers and stationary steam-engmes, and issue certiflcates, stating the maximum 
working pressure, which cortificates sliould be aceepted by the chief inspector 
for the city of Philadelphia, is liable for damages resulting from a négligent in. 
spectïon and false certiflcate. 

2. SaMB— BUKDEH OP PKOOy. 

VVhere a steam-boiler insured and inspected by such corporation exploded, 
killing a child of the plaintitfs, the burden of proof was upon the plaintifls to 
sliow (1) that the certiflcate accorded to the boiler a greater capacity of résist- 
ance than it would safely bear, thus authorizing its use under a dangerous de- 
gree of pressure, and (2) that this was the resuit of négligent inspection. 

S. Bamb — Evidence— Admissibility of Tests upon Anotheb Boiler Similab in 
Construction to thb Boiler in Question. 

Expérimental tests, made after the accident, upon a boiler similar in con- 
struction to the one in question, are admissible in évidence for the purpose of 
showing that the défendant was not négligent in the inspection of the boiler 
which exploded. 

4. Bamb — Insurbrs. 

The défendants were not insurers as respects the plaintifEs, and are not, 
tlierefore, responsible for the conséquences of according to the boiler a higlier 
degree of resisting power than it would safely bear, unless their doing this re- 
sulted from négligence. 

Motion for a rule for a new trial. This was an action upon the 
case brought by William Bradley and wife, citizens of Pennsylvania, 
agaihst Thô Hartford Steam Boiler Inspection & Insurance Company, 
a corporation of Connecticut, to recover damages for the death of 
plaintiffs' child, caused by the explosion of a boiler inspected and in- 
sured by the défendant. By an act of Pennsylvania, approved May 
7, 1864, (Pamphlet Laws 1864, p. 880,) the mayor of Philadelphia is 
directed, by and with the advice of councils, to appoint inspectors of 
steam-boilers, and a penalty is imposed upon any using boilers with- 
out ûrst obtaining a certiâcate from the inspectors that the same was 
found safe and stating its maximum working pressure. By an ord- 
inance of Philadelphia, approved July 13, 1868, (West's Dig. 417,) 
the uumber and duties of the inspectors are set forth. By an act of 
Pennsylvania, approved July 1, 1869, (Pamphlet Laws 1869, p. 1279,) 

«Reported by Albert B. Quilbert, Esq., of the Philadelphia bar. 



BBADIiEY r. HABTFOBD STSAU-BOIIiEB INSPECTION & INS. 00. 247 

the défendant was authorized to inspeet steam-boilers and issue cer- 
tificates in accordance with the above recited act and ordinance. 

George H. Van Zandt and Furman Sheppard, for plaintiffs. 

Frank Wolfe and Benjamin Harris Brewster, for défendant. 

Butler, J., (charging jury .) By virtue of the statute, to which yoiir 
attention bas been ealled, authorizing the défendants to inspeet steam- 
boilers in pursuance of the laws of this state, the défendants' accept- 
ance of the authority thus conferred, and undertaking to inspeet 
Gaffnej^ & Nolan's boilers, at the corner of Martha and Collins streets, 
it became their duty to make this inspection in the manner indicated 
by the eity ordinance read to you with the care skill which the 
importance of the duty demands, and to grant a certificate speci- 
fying the estent of pressure the boilers would safely bear. The 
plaintiffs allège that the certificate granted accorded to the boiler in 
question, a greater power of résistance than it would safely sustain; 
that this was the resnlt of carelessness in the inspection, and that in 
conséquence a greater strain was put upon the boiler than it would 
bear, whereby it was exploded, and the plaintiffs' son killed. If this 
allégation is sustained by the évidence, the plaintiffs are entitled to 
your verdict; and, in snch case, shonld be awarded a sum equal to 
what you may find would hâve been the value of the child's services 
to his parents, during minority, if he had lived. Is the allégation 
sustained by the évidence ? This inquiry présents two questions, and 
two only. (1) Did the certificate accord to the boiler a greater ca- 
pacity of résistance than it would safely bear, thus authorizing its 
use under a dangerous degree of pressure? And if it did, then (2) 
was this the result of négligent inspection? Thè burden of proof 
respecting both questions is on the plaintiffs, who must show by sat- 
isfactory évidence — First, the incapacity of the boiler to sustain the 
pressure accorded ; and, second, that the failure to discover this inca- 
pacity, and granting the certificate to use it at so high a rate, was the 
resuit of négligence. 

Considering thèse questions in their order, you will fij'st inquire 
whether the plaintiffs hâve shown that the boiler would not safely 
bear the certified pressure. They ealled before you several mechan- 
ical engineers as experts, some of whoœ testified from investigations 
made after the explosion, that, in their judgment, the boUer-head 
would not safely sustain the pressure, and gave you their reasons for 
this conclusion. Some of thèse witnesses, as the court understood 
them, did not unité fuUy in this judgment. This, as you observe, is 
the opinion simply of skilled and intelligent witnesses, who had no 
opportunity of examining and testing the head (the only part alleged 
to be defeotive) before the explosion. On the other hand, the défend- 
ants bave ealled before you the manufacturers of the boilejf, who tes- 
tify not only that the boiler was constructed of good material, and in 
the best manner as respects workmanship, but also that they sub- 
jected it to the hydrostatic test, and thus aotually ascertained that i% 



248 ÏEDBBAL BEPOBTBB. 

would safely bear a considerably higher degree of pressure thau the 
certificate subsequently accorded it. The défendants' agents, who 
inspected the boiler and granted the certiûcate, testify that they also 
Bubjected it to this test, and ascertained it to be capable of bearing 
the pressure accorded, with safety. The engineer who was first placed 
in charge testifies that for the several weeks he ran the engine the 
boiler sustained this pressure with safety. Several witnesses hâve 
testified that, with a view of ascertaining what pressure such a head 
would bear, a short boiler, with a head precisely like this, was man- 
ufactured after the accident, and subjected to the hydrostatic test, 
under the supervision of the city inspector; and that it actually bore 
between four and five hundred pounds to the square inch. The de- 
fendants also called experts, who, from the appearance of the boiler, 
expressed the judgment that it would safely bear the pressure certi- 
fied. Now, gentlemen, under the évidence (and if there is anything 
more bearing upon this question than I hâve referred to, you will re- 
member and consider it,) can you say that the boiler in question 
would not safely bear the pressure accorded it ? If you cannot, then 
your verdict must be for the défendants without going further. If 
you Ënd it was not capable of bearing this pressure, then you will 
pass to the second question, to-wit, does it appeàr from the évidence 
that the défendants were négligent in not discovering this ? 

The défendants were not insurers, as respects the plaintiËfs, and 
are not, therefore, responsible for the conséquences of according to 
the boiler a higher degree of resisting power thaii it would safely 
bear, (if they did so,) unless theirdping thisresulted from négligence. 
As before stated, it was their duty to inspect and test the boiler, as 
bas been explained to you. If the want or insufficiency of resisting 
capacity could be discovered by such inspection, they should bave dis- 
covered it, and failure to do so, under such circumstances, would be 
négligence. They were not required, nor authorized, however, to eut 
or chip the iron, and thus ascertain its quality, but to examine the 
boiler and its workmanship carefuUy and intelligently, and see 
whatever could thus be seen, and to subject it to the prescribed 
hydrostatic test. If they did this, and certified according to their 
beat judgment thus formed, they are not responsible, no matter 
what latent defects may hâve existed. Does the testimony warrant 
a conclusion that this duty was not properly performed ? Can you 
say that the boiler was subject to any defect discoverable by such an 
inspection? As before stated, the only defect alleged was in the 
bead. This was of cast iron, flat, with the flange turned inward. If 
such heads as you find this to hâve been were in common use, and 
thus approved by manuf acturers and the trade, the défendants cannot 
be held guilty of négligence in failing to condemn it on this account. 
That such heads were in common use at the time, the testimony on 
both sides would seem to put beyond doubt. That other heads, of a 
différent type, might be safer, or that experts differ in judgment on 



EEADLEY V. HARTJFORD STEAM-BOILEB INSPECTION <fe INS. CO. 249 

this subject, is unimportant. Tlie défendants cannot be found guilty 
of négligence in failing to condemn a head such as was in gênerai 
use, and thus proved to be reasonably safe, or at least shown to be so 
esteemed. 

The plaintiffs, however, contend, and bave endeavored to prove, 
that this head, aside from its kind and material, was defective in 
manufacture, in that the man-hole plate, as they assert, was irregu- 
lar or uneven on its surface, so that when bolted down upon the 
head, to make a close joint, it would strain the métal of the head, 
and in some other minor respects. While two, and possibly more, of 
the plaintiffs' experts testify to such defects of construction, others, 
and probably a large number of the plaintiffs' witnesses who had an 
equal opportunity of examining the head, testify either that they did 
not find thèse defects, or that they attach no importance to them. 
On the other hand, the défendants hâve exhibited the man-hole plate 
to you, and called witnesses, who, examining it in your présence, say 
it does not exhibit such uneven surface, and that it cannot bave been 
altered in this respect since the accident. 

To the court the exhibition of the plate, with this testimony, seeins 
to be a complète and conclusive answer to the plaintiffs' allégation 
in this regard. You will say, however, whether it is so or not. Other 
experts called by the défendants, tell you that there were no defects 
in the boiler-head, such as the plaintiffs asoribe to it, nor any other 
that a careful and compétent inspecter eould hâve discovered. The 
city inspecter, Mr. Overn, called by the plaintiffs, as well as the de- 
fendants, tells you distinetly and emphatically, that no imperfection 
of any description could hâve been discovered in it before the explo- 
sion. He further tells you that he, as inspecter, would certainly bave 
passed it, and accorded the pressure certified; that the broken parts, 
examined by him after the accident, showed plainly that the explo- 
sion resulted from faultiness of the iron alone, which faultiness no 
previous inspection could hâve revealed. The défendants' agents, 
who inspected and tested the boiler, describe to you how they did it; 
testify that they were careful in ail respects; that they could discover 
no defect; and that it safely bore the prescribed test. The court 
sees nothing to justify the suggestion that thèse inspectors were want- 
ing either in expérience or intelligence. Now, gentlemen, can you say 
that the want of resisting power in the boiler (if it existed) should 
hâve been discovered by inspection ? 

I bave little more to say. Unless the évidence satisfies you that 
the boiler would not bear the pressure accorded to it, and also satis- 
fies you that this incapacity to bear such pressure could bave been dis- 
covered by proper inspection, your verdict must be for the défendants. 
I deem it my duty to say to you, that the plaintiffs' case, in my judg- 
ment, is weak, as respects both thèse points; so weak as hardly to 
justify a verdict in their favor. The question, however, is submitted 
to you, to be determined according to your judgment. In submitting 



250 FEDEBAL BEFOBTEB. 

it I caution you against ail suggestions of sympathy or préjudice. 
They hâve no proper place in a court of justice. 

The point submitted by the défendants, to-wit: "Thatunder ail the 
évidence as presented, the verdict must be for the défendants," was 
reserved by the court. 

Verdict for défendants. 



The plaintiSs moved for a rule for a new trial, assigning for rea- 
sons that évidence was admitted concerning an expérimental test of 
a différent boiler than the one in question, but said to be constructed 
in a similar manner; that the court oharged that the défendant was 
not guilty of négligence if the boiler in question was of a kind in com- 
mon use and approved by manufacturers and the trade, and properly 
inspected and tested ; and because the court declared that the plain- 
tiff's case was so weak as hardly to justify a verdict in their favor. 

Eule discharged. 

Vide Rose y. Stephetis & Condit Transp. Co. 11 Fed. Eep. 438. 



ViETOE and others v. Aethue. 
(Circuit Cowt, 8. D. New York. Pebruary, 1884.) 

OUBTOMB DUTIES — WOOI-BN StOCKINGS — SPECIFIO STATUTB NOT RhpBALED BT 

Genbeal. 

The spécifie provisions of the act of July 14, 1862, } 13, fixing the duty upon 
'• stocking, etc., made on frames," are not repealed, -with respect to stoclîings 
made of either wool or worsted and cotton, by the gênerai provisions of the act 
of March 2, 1867, { 2, regulating the duty upon "ail maaufacturea of wool." 

Motion for New Trial. 

Stephen G. Clarke, for plaintiffs. 

Elihu Root and Samuel B. Clarke, for défendant. 

CoxB, J. Prior to the Eevised Statntes, the plaintiffs imported înto 
this country stockings eomposed of either wool or worsted and cotton. 
They were made on frames and worn by men, women, and children. 
The collecter assessed them under the second section of the act of 
March 2, 1867. as foUows : 

"On woolen cloths, woolen shawls, and ail manufactures ofwool ofewry 
description made wholly or inpart ofwool, not herein otherwlse provided for, 
flfty cents per poiind, and, in addition thereto, thirty-flve per cent, ad valorem. 
On flannels, blankets, bats of wool, knit goods, balmorals, woolen and worsted 
yarns, and ail manufatures of eoery description eomposed wholly or in part 
of worsted, the hair of the alpaca, goat, or other like animais, except such as 



VlBTOB V. ABTHUB. 251 

are composed in part of wool, not otherwise provided for, valued at not ex- 
ceeding forty cents per pound," etc. 14 St. at Large, 559. 

The importera insisted that they should hâve been classified under 
section 13 of the act of July 14, 1863, as foUows : 

"Caps, gloves, leggins, mits, soeks, stockings, wove shirts and drawers, 
and ail similar articles made on f rames, of whatever matei-îal composed, 
worn hy men, women and children, and not otherwise provided for. " 12 St. 
at Large, 556. 

The suprême court, having the provisions of the Eevised Statutes 
under considération, as applicable to thèse identical importations, say, 
in Victor v. Arthur, 104 U. S. é98 : 

"It is also well settled that when congress haa designated an article by its 
spécifie name, and imposed a duty on it by such name, gênerai terras in a 
later act, or other parts of the same act, although sufilciently broad to com- 
prehend such article, are not applicable to it. * * * It is conceded that 
stockings made on franaes hâve been dutiable eo nomine since 1842, and by 
four différent en actments." 

Hère, then, is a gênerai and long recognized rule of statutory con- 
struction applicable to the law as it existed both before and after the 
Kevision, as applicable to the case at bar as to the case the suprême 
court were considering. Tested by it the position of the plaintiffs 
seems well taken. They imported "stockings made on frames worn 
by men, women, and children." It would be difficult to employ lan- 
gnage more correctly doscribing the articles — the duty being imposed 
without référence to the material. But it is asserted that the gênerai 
language of the act of 1867, viz., "manufactures of wool of every de- 
scription" and "knit goods • » • composed wholly or in part 
of worsted" repealed the provisions quoted from the act of 1862. 
That it does not do this exgressly is admitted,but it is argued that it 
opérâtes as a repeal by implication. 

The act of 1867 was, to use the language of defendant's brief, 
"intended to be a complète and exhaustive revision of the tariff so far 
as it related to wool and articles containing wool." It certainly was 
very comprehensive, spécifie, and minute in its classifications. That 
in such an act, where "buttons," "head-nets," and "hats of wool" 
were not forgotten, no mention should bave been made of "stockings 
made on frames" or the acts which for many years imposed a duty 
upon them by that name, is indeed significant. Within the rule 
just quoted from the suprême court the spécifie description in the act 
of 1862 was not affected by the gênerai description in the act of 
1867. When the collector turned to the former act he found pre- 
cisely what the law requires him to search for in the first instance — 
a particular description of the imported articles. There was no need 
to examine further. His duty was done. 

The motion for a new trial is denied. 



252 FEDEBAL BBPOBTEB. 

MiDDLETON Papeb Co. V. EocK EivBR Papee Co.j Défendant, and 

another, Garnishee. 

{Circuit Court, W. D. Wisconsin. January 26, 1884.) 

1. Fédéral Court Phactice— Processes— How Issued. 

AH writs and processes issuing frotn Ihe courts of tlie United States sliall Vie 
under the seal of the court from which they issue, and shall be signed by tlie 
cleriî tliereof. Those issuing from the suprême court, or a circuit court, sliall 
bear teste of the chief justice of the United States. Section 911, Kev. St. 

2. Samb — Garnisheb Phocbedings — Summons in — How Issued. 

The summons in a garnishee proceeding is " process" within tlie nieaningof 
the statute prescribing the manner in which processes shall issue from the féd- 
éral courts, both the statutes and the décisions of the state courts regarding 
the garnishee proceeding as the commencement of a new suit against the de- 
fendant therein. 
8. Same— Summons Issued bt thk Attohnbt— Ambndment. 

A process which has been issued by the attorney when it should hâve been 
issued by the clerk is no process at ail, and cannot be amended as in the case 
of an irregularity. Under such a summons the court gets no jurisdiction of 
the case, and there is nothing to ameud. 

At Law. 

Tenny é Bashford, for plaintiff. 

Pease é Rugen, for défendant and garnishee. 

BuNN, J. This action was brought by the plaintiff, a citizen of 
Ohio, against the défendant, the Rock River Paper Company, a citi- 
zen of Wisconsin, upon an acceptance made by said défendant in 
favor of ' the plaintiff. John Hackett, also a citizen of Wisconsin, 
was served with garnishee process, issued and signed by the plaintiff's 
attorneys, according to the forms of proceeding in sueh cases under 
the laws of Wisconsin. The defendant's attorneys, appearing for the 
garnishee for that spécial purpose, move the court to set aside the 
garnishee proceedings, on the ground that no sufScient process haa 
been served upon the défendant. Section 911, Rev. St., provides that 
"ail writs and processes issuing from the courts of the United States 
shall be under the seal of the court from which they issue, and shall 
be signed by the clerk thereof. Those issuing from the suprême 
court or a circuit court shall bear teste of the chief justice of the 
United States. And rule 20 of the rules for this district provides 
that ail process shall be issued by the clerk under the seal of the 
court, and shall be signed by the clerk issuing the same, and shall 
be returnable at Madison or La Crosse, as directed by the party ap- 
plying therefor. The garnishee summons in this case, served upon 
the défendant in the garnishee proceedings, is in the form prescribed 
by the law and practice in the state court, runs in the name of the 
state of Wisconsin, has no seal, and is issued and signed by the 
plaintiff's attorneys. 

The question is whether in view of the foregoing provisions such a 
practice can obtain in this court; and it seems quite clear that it 



HIDDIiETON PÂFEB OO. V. BOOE BIV£B PAPEB 00. -> 253 

cannot. It is true that section 914, Eev. St., provides tliat the 
practice, pleadings, and forma and modes of proceeding in civil 
causes, other than equity and admiralty causes, in the circuit and dis- 
trict courts shall conform as near as may be to the practice, plead- 
ings, and forms and modes of proceeding existing at the time in like 
causes in the courts of record of the state within which such circuit 
or district courts are held, any rule of court to the contrary notwith- 
standing. But it is évident that this provision must receive a rea- 
sonable construction in connection with the other provisions above 
referred to, requiring process to be issued by the clerk of this court un- 
der the seal thereof. Under the state law in this state and in New 
York and some other states, the plaintiff's attorney issues the sum- 
mons, which is the commencement of a suit. But I believe it has 
uniformlybeenheld, inview of the provisions of congress, that this can- 
not be done in the fédéral courts ; and so it has been the uniform prac- 
tice in this state, so far as our knowledge goes, that the summons, as 
well as writs of attachment and arrest, are issued by the clerk of thia 
court under the seal of the court, run in the name of the président of 
the United States, and bear teste of the chief justice of the United 
States. In other respects they are in substance and form as pre- 
scribed by the laws of the state. 

It is insisted, however, by plaintiiî's attorneys, that a garnishee 
summon is not "process." I amunabletoconcurin this vie w. Both 
the statues and décisions of the state courts regard the garnishee pro- 
ceedings as the commencement of a new suit against the défendant 
therein. Section 3766, Eev. St. Wis., provides: "The proceedings 
againat a garnishee shall bedeemed an action, bytheplaintiff against 
the garnishee and défendant, as parties défendant, and ail the provis- 
ions of law relating to proceedings in civil actions at issue, includ- 
ing examination of the parties, arhendments, and relief from default, 
or proceedings taken, and appeals, and ail provisions for enforcing 
judgments, shall be applicable thereto. The statute provides for the 
formation of an issue and trial, and a personal judgment against the 
garnishee défendant. He may also be punished for contempt for 
failing to answer when duly summoned. See, also, Atchisony. Rasa- 
lip, 3 Pin. 288; Orton v. Noonan, 37 Wis. 572; Everdell v. S. é F. 
du L. R. Go. 41 Wis. 395. Although the garnishee prceedings are 
ancillary and auxiliary to the suit against the original défendant, 
they are nevertheless properly regarded as constituting a separate 
action against the garnishee. And the summons served upon him is 
the "process" by which the court is to get jurisdiction of the action, 
if it gets it at ail. It oomes within any définition of process with 
which the court is acquainted. The summons, notice, writ, or what- 
ever it may be called, by virtue of which a défendant is required to 
coma into court and answer, litigate his rights, and submit to the 
Personal judgment of the court, must be "process within the meaning 
of the law of congress" and the rule of the court, which is to be issued 



254 FEDERAL BEPOBTEB. 

by the clerk of thîs court, nnder the seal of the court and tested in 
the name of the chief justice of the United States. And this makea 
the practice in this court consistent and uniform. There would be 
no consistency in requiring the summons, by which the action is be- 
gun, to be issued from the court and allow the garnishee summons 
to be issued by the attorney. It is no doubt the policy of the law 
to keep process under the immédiate supervision and control of the 
court. 

The plaintiff's counsel ask for leave, in case the practice is held to 
be irregular, to allow an amendment; and the law of amendments is 
ample for the purpose, if the defect be curable by amendment. But 
the difficulty is, there is nothing to amend by. If process, in some re- 
spects irregular in form or substance, had been issued, the court could 
amend it. JFor instance, if the clerk had issued the summons and 
f ailed to seal it, the court could order it sealed. But no process, reg- 
ular or irregular, bas been issued by the proper authority. Hence it 
is that the court gets no jurisdiction of the case, and there is nothing 
to amend by. 

• The motion must therefore be allowed, and the garnishee proceed- 
ings set aside. 

See Peaslee v. Hàberstro, 15 Blatchf. 472; Dwight v. Merritt, 4 Fed. Eep. 
614; Ins. Co. v. Hallock, 6 Wall. 556; Republio Ins. Co. v. Williams, 3 
Biss. 372; Manville v. Battle M. S. Co. 17 Fed. Réf. 126; Field, Fed. Pr. 
176, 181, 427, note 1. 



Ltjng Chuno, Adm'r, etc., v. Northern Pao. Et. Co. 

BUOHANAN V, SaME, 

{District Court D. Oregon. February 8, 1884.) 

1. KlGHT TO ApPBAB SPECIALIiT. 

A défendant in an action, upon whom a summons has been served illegally, 
may appear therein specially, for the purpose of having such illégal service set 
aside ; and there is nothing in sections 61 and 520 of the Oregon Code of Civil 
Procédure derogatoiy of such right. 

2. Action in National Courts. 

Subdivision 1 of section 54 of said Code, ■rohen applied to actions in the na- 
tional courts, must be construed as if the word "county" read "district." 

3. CoEFORATioN— Service op Summons on. 

In an action against a corporation in the United States circuit court for the 
district of Oregon, if the summons is served under said subdivision 1 of section 
54, on any agent of the défendant other than its président, secretary, cashier 
or managing agent, unless it appears that the cause of action arose in the dis- 
trict, such service is illégal, and will be set aside on the application of the dé- 
fendant. 

4. Cause of Action — Whbn and Whkhb it Arises. 

A cause of action given by statute to an administrator to recover damages 
for the death of his intestate arises ont of such death, and where it occurred; 
and not the appointment of the administrator or the place where it was made. 



LUNO OHUNS V. NOBTHBBN FÂO. BT. 00. 256 

Action for Injury to the Person. Motion to set aside the service 
of a summons. 

John H. Woodward, for Lung Ohung. 

0. P. Mason, for Buchanan. 

Cyrtis A. Dolph, for défendant. 

Deady, J. Thèse actions are each brought to recover damages for 
an injury to the person, caused by the négligence and miseonduct of 
the défendant. In Lung Ghung's case it appears from the complaint 
that on June 21, 1883, Lung Ban was at work on the grade of de- 
fendant's railroad, in Montana, about 10 miles to the westward of 
Herron's Siding, "when he was killed by the wrecking of a train on 
which he ■was being carried from the place where he was working to 
the camp of the contractors, On Chung Wa Company, under whom he 
was employed; and that on November 23, 1883, the county court of 
Multnomah county, Oregon, granted letters of administration upon 
the estate of the deceased to the plaintiff, who is a citizen of China. 
In Buchanan's case it appears that the plaintiff is a citizen of Ne- 
vada, and that on February 13, 1883, he was at work for the défend- 
ant as a carpenter, repairing bridges, on the Une of its road in Wash- 
ington territory, when, by the falling of timbers from a platform car, 
he had bis arm and wrist broken, and was otherwige injured. In 
each case it appears that the défendant is a corporation formed under 
a law of the United States ; and in Buchanan's case it also appears 
that its principal place of business is at New York ; while in Lung 
Chung's case it is also alleged that the défendant was so organized 
for the purpose of constructing and operating a railway from Minne- 
sota to Oregon and Washington territory; of ail whicb, except the 
place of business, the court takes judicial notice. ; A summons was 
duly issued in each case, and from the return of the marshal thereon 
it appears that not being able to find the président, secretary, cashier, 
or managing agent of the défendant in this district, he served the 
summons on Homer D. Sanborn, "the purchasing agent" of the de- 
fendant herein. The défendant now moves to set aside the service 
of the summons in each case, having given the plaintiffs written no- 
tice of its appearance for that purpose; and by consent of parties the 
motions are heard together. 

And, ^rsï, the counsel for the plaintiff in Buchanan's case insists 
that the défendant cannot appear for this purpose only — that it must 
either appear fuUy and without reserve or not at àll, citing sections 61 
and 520 of the Oregon Code of Civil Proc. By the first of thèse sections 
it is provided, in effect, that a voluntary appearance of the défend- 
ant shall, for the purpose of giving the court jurisdiction, be équiva- 
lent, to a Personal service of the summons;" while the latter déclares 
that "a défendant appears in an action or suit when he answers, de- 
murs, or gives the plaintiff written notice of bis appearance; and 
until he does so appear he shall not be heard in such action or suit, 
or in any proceeding pertaining thereto, except the giving of the un- 



256 7EDEE AL BEPOBTEB . 

dertatîngB allowed to the défendant in the provisional remédies of 
arrest, attaohment, and the delivery of personal property." Section 
61 contemplâtes, of course, a full and unqualifled appearance, and 
déclares the effect of it on the jurisdiotion of the court ; but it has no 
bearing on the question whether a défendant has a right to make a 
qualified appearance for a spécial purpose, as to set aside an attach- 
ment or the service of a summons. So, an appearance under said 
section 520, by delivering a demurrer or answer to the complaint, is 
in the nature of things an unqualified appearance. There is only one 
other way for a défendant to appear, and that is by giving the plain- 
tiff written notice thereof . And the question is, can that appearance 
be something short of a gênerai appearance and for a particular pur- 
poae ? There is nothing in the Code to the contrary. The statute 
says the défendant may appear by a written notice. This does not 
necessarily imply a full appearance or exclude a qualified one. If 
the défendant desires, in the language of the statute, to appear, not 
to the action, but in a "proceeding pertaining thereto," -why may he 
not, and what is there in section 520, or the nature of the proceeding, 
to prevent it ? The right to appear specially and move to set aside 
the service of a summons is one thing, and the allowance of the 
motion is another. When the summons or the service thereof is 
merely defective or wanting in some matter of form or method -which 
does not affect the substantial rights of the défendant, the motion to 
set aside will be disallowed, or a counter motion allowed to amend. 
But where the service is unlawful, and cannot give the court juris- 
diotion of the défendant, it ought to be set aside or quashed, and, un- 
less the party upon whom it is made is allowed to appear for that 
purpose, he must run the risk of having a judgment given against 
him for want of an answer, in a case where it may be there is no 
appeal, and, if there was, the illegality of the service is not apparent 
on the face of the record. 

InLyman v. Milton, 44 Cal. 635, and Kent y. West, 50 Cal. 185, 
it was held in the one case that a party was entitled to appear spe- 
cially and move to set aside the service of an illégal summons, and, in 
the other, to set aside the illégal service of a légal summons; and 
further, that the wrongful déniai of such motion was an error that 
was not waived by the defendant's subséquent appearance and trial 
of the case. 

To the same effect is the case of Harkness v. Hyde, 98 TJ. S. 476, 
in which it was held that the service of a summons from a district 
court in Idaho, upon a défendant while on an Indian réservation, 
from which the jurisdiction of the court was by law excluded, was 
unlawful, and that the défendant was entitled to appear specially, to 
hâve such illégal service set aside; and further that the error com- 
mitted in denying the motion to set aside was not waived by the de- 
fendant's subséquent appearance and submission to a trial of the 
cause. 



OONG CHUNG V. NOBTHÉRN PAO. BY. CO. - 267 

The cases under considération are within the rulings made in thèse 
cases, and I see nothing in the Code to take them ont of it. Nothing 
less tban the express language of a statute or the necessary implica- 
tion therefrom would be construed by any court of justice as forbid- 
ding or preventing a party to appear in an action for the purpose of 
having the service of a summons set aside, on theground that it was 
illegally served upon him, — not in manner, but in substance, — and 
under such circumstances as not to give the court any jurisdiction of 
his person, or authority to proceed to judgment against him. 

By the act of 1875 (18 St. 470) it is provided that no civil suit 
shall be brought before any circuit court against any person, by any 
original process or proceeding, in any other district tban that whereof 
he is an inhabitant, or in which he shall be found at the time of 
serving such process or commencing such proceeding," saving certain 
exceptions not now material. Whether the défendant is an "inhab- 
itant" of this district, within the meaning of this act, need not now 
be considered. If it is such an inbabitant it cannot be brought be- 
fore this court as a défendant in this action unless by the due service 
of a summons upon it; nor can it be "found" hère for such purpose, 
only 80 far as it can be so served hère. And in either case we must 
look to the local law prescribing the method of serving a summons 
on a corporation to ascertain what constitutes such service and the 
effect of it. The défendant, being a mère légal entity, cannot be di- 
rectly served with process. Prom the nature of the case the service 
must be a substituted one. Generally, it is made upon some natural 
person for it. This person is usually designated by the local law, 
upon the theory that his relation to the corporation is such that no- 
tice to him will resuit in notice to it. 

By section 54 of the Code of Civil Procédure, as amended in 1876, 
(Sess. Laws, 37,) it is provided that in case of an action against a 
private corporation the summons shall be served on "the président 
or other head of the corporation, secretary, cashier, or managing 
agent," or in casa none of thèse ofBcers "shall réside or hâve an of- 
fice in the county where the cause of action arose, then on any clerk 
or agent of such corporation who may résida or be found in the 
county; or if no such officer be found, then byleaving a copythereof 
at the résidence or usual place of abode of such clerk or agent." Al- 
lowing that the practice in this court, in this respect, must conform 
"as near as may be" to the directions of this section, as provided by 
section 914 of the Eevised Statutes, still the word "county," as used 
therein, must in this court be understood to mean the "district" or 
territorial limit of the court's jurisdiction. The défendant, although 
an inhabitant of this district, cannot be brought before this court in 
a civil action, unless it is served with a summons in the mode pre- 
scribed in this section. If the action is transitory in its character, 
and service of the summons is made within the district on the prési- 
dent, secretary, cashier, or managing agent of the défendant, the 
v.l9,no.4— 17 



258 fedebaIj befobteb. 

court acquires jurisdiction without référence to where the cause of ac- 
tion arose. But if neither of them can be bo served, the action can- 
not be maintained in the district unless the cause of action arose 
therein. For the statute, in giving a plaintiff the right to serve a 
Bummons against a corporation upon any inferior agent or clerk 
tbereof, where the superior ones cannot be found in the district, lim- 
its the same to cases -where the cause of action arose in the district. 
Now, in each of thèse cases the cause of action arose without the dis- 
trict, and therefore the service of the summons thereon upon an agent 
ôf the corporation who does not appear to be its "managing" one, or 
its secretary, cashier, or président, is unauthorized and illégal. The 
illegality arises, not from a defeet in form or method, but in sab- 
stance, and is therefore incurable. In efîect, the law does not, under 
thèse circumstanees, permit the défendant to be brought before this 
court in civil action without ita consent upon a cause of action that 
arose without the district. 

The suggestion of counsel for the plaintiiï, in Lung Chung'8 case, 
that the cause of action ought to be considered as having arisen 
within the district because the plaiptiff's letters of administration 
were granted hère, is ingenious, but not sound. On the contrary, the 
cause of action arose in Montana on the death of the deceased, — the 
law of that territory giving an action to' bis heirs or personal repré- 
sentatives for damages on that account. The plaintiff's right to sue 
on this cause of action may be said to hâve originated hère, but the 
grant of administration to him did not create or originate the cause 
of action, though it gave him a certain control over it. 

The motions are allowed, and the service set aside. 



Child V. Boston & Fairhaven Ieon Works. 
{Circuit Court,!). Massachusetts. January 25, 1884.) 

1. Patents fou Inventions— Infringembnt— Second Action for Damages for 

Same Act. 

A party who has elected to take judgment for his profits, which judgment 
bas not been reversed, cannot prosëcute a second action for other damages aris-, 
ing out of the same acts of infringement. 

2, Samb — Pamaoes for a Single Wronq. 

For a single wrong, the damages for which are capable of ascertainment, and 
which is not in the nature of a continuing nuisance or trespass, only one action 
will lie, and the damages musl be assessed once for ail 

At Law. 

E. P. Brown and C. E. Washburn, for plaintiff. 
Causten Browne, for défendant. 

LowELL, J. The parties hâve agreed that if, upon the facts sub- 
œitted, the action can be further maintained, it shall stand for trial; 



•ÎHILD V. BOSTON & FAIBHAVElî IBON WOBKS. iJ59 

if not, a verdict shall be entered for the défendant. Itisan action at 
law for infringement of two claims of a patent owned by the plaintiff, 
After it was begun the plaintiff filed his bill on the equity side of the 
court for precisely the same infringement, which consisted of making 
and selling certain printing presses, and Judge Shbplby, after a full 
hearing, entered an interloeutory decree for an injunction, and an 
aeeount of the profits and damages. CMld v. Boston é Fairhaven 
Iran Works, 1 Holmes, 303. The master reported that the plaintiff 
had not claimed damages as such, and that he was entitled to re- 
eover |5, 640,26, as profits. No claim was made before the court 
or the master under the second claim of the patent, and it was not 
passed upon, tbough the bill was broad enough to include it. A final 
decree was entered for the sum found by the master, but it bas not 
been satisfied. The suit in equity was begun after the statute of 1870 
had given the owners of a patent the right to recover damages as well 
as profits, in equity; and, under the prayer for gênerai relief, the 
plaintiff might hâve had his damages assessed, as the interloeutory 
decree itself provides. Both suits, therefore, were for precisely the 
same cause of action; and though the remedy in equity was more 
complète, it was a concurrent remedy with this action, and bas now 
passed into judgment. If the plaintiff had found that his damages 
exceeded the defendant's profits, he might hâve had the larger sum 
asseased. BirdsaU v, CooUdge, 93 U. S. 64. 

The principle of law relièd on by the défendant, applies to the 
damages for the second claim, as well as damages generally. It is 
that the same défendant shall not be twice vexed by the same plain- 
tiff for a single wrong, any more than for a single contract. "Sup- 
pose," said the court, in Farrington v. Payne, 15 Johns. 432, 433, "a 
trespass, or a conversion of a thousand barrels of flour, would it not 
be outrageons to allow a separate action for each barrel ?" So far as 
I hâve been informed by the able arguments, or hâve discovered by 
my own examination, the authorities agrée entirely, to this extent, 
at least, that for a single wrong, the damages for which are capable 
of ascertainment, and which is not in the nature of a continuing nui- 
sance or trespass, only one action will lie, and the damages must be 
assessed once for ail. The doctrine bas sometimes operated harshly 
for plaintiffs, whose damages proved to be greater than they were ex- 
pected to be. Hère, however, the infringement consisted in making 
and selling certain machines, identical in the two cases, and not for 
their continued use; and there is no possible élément of prospective 
or uncertain damage. See Bennett v. Hood, 1 Allen, 47; Trask v. 
Hartford d N. H. R. Go. 2 Allen, 331 ; Goodrich v. Yale, 8 Allen, 
454; Fowle v. New Haven é N. Co. 107 Mass. 352; Folsom v. Clém- 
ence, 119 Mass. 473; McCaffrey v. Carter, 125 Mass. 330; Adm'r of 
Whitney v. Clarendon, 18 Vt. 252; Great Laxey Mining Co, v. Clague, 
4 App. Cas. 115. 

In giving the opinion of the suprême court, that an unsatisfied 



260 FEDKRAIi EEPORTEa. 

judgment agaînst one wrong-doer does not bar an action againet oth- 
ers who are jointly and severally liable, Milles, J., ia careful to dis- 
tinguiah the case from that of a second action against the same de- 
fendant. Lovejoy v. Murray, 3 Wall. 1, 16. 

The plaintiff having elected to take judgment for his profits for the 
précise infringement which is the subject of this action, which judg- 
ment bas not been reversed, he cannot now prosecute his action for 
other damages arising ont of the same acts of infringement; and, in 
accordance with the stipulation, there must be a verdict for the de- 
fendant. 



NicoDEMTja and another v. Feazier. 

(Circuit Court, D. Maryland. January 24, 1884) 

Patehts l'os Inventions— CoMBiHATioN Void for Want dp Patentabilitt. 
Patent No. 241,405, granted December 27, 1881, to Nicodemus & Weeks, for 
improvement in apparatus for prooessing canned gooda, held to be a combina- 
tion of old éléments, void for want o£ patentability. 

In Eqnity. 

Sébastian Brown, for complainants. 

John H. Barnes, for défendant. 

MoREis, J. Bill of complaint for infringement of patent No. 
241,405, granted to complainants December 27, 1881. Complainants' 
patent is for an improvement in an apparatus for processing canned 
goods. To enable the goods, after being pat in hermetically-sealed 
cans, to be subjected to a higher degree of beat than 212 degreea 
Fahrenheit, the complainant provides a vessel, or kettle, with a 
steam-tight cover in which the cans may be placed, and the steam 
admitted until the température is raised to the required degree. The 
cans being subjected while in the steam-tight vessel to the pressure of 
the confined steam are not liable to be burst by the explosive pressure 
generated within them. The steam-tight processing vessel is sub- 
stantially the same contrivance described and claimed in patent No. 
149,266, granted to Andrew K. Shriver March 31, 1874. Shriver's 
contrivance is not claimed by him in his patent in combination with 
any boiler or steam generator, but simply as a steam-tight process- 
ing vessel, to be supplied with steam from any convenient steam gen- 
erator. 

The complainant in his patent claims this steam-tight vessel in 
combination with an ordinary tubular boiler, and it is described and 
shown as placed upon the boiler with the bottom extending down- 
ward a little distance into the boiler itself . The first claim is for the 
combination of the vessel and the boiler, the vessel mounted upon 



NICODEMDS V. FEAZIBB. 



26l 



the boiler and communicating with the steam drum. The second 
claim is for the combination of the vessel and boiler, with the vessel 
resting upon and partially within the boiler, The third claim is for 
the combination of the same éléments in connection with a removable 
lid for the kettle, a clamp to fasten it, a gage cock and pipe, ail of 
them weH known appliances used in connection with boilers and ves- 
sels in which steam is confined. It is quite évident, I think, that 
there is nothing new in the processing kettle, and nothing new in the 
tubular boiler, and nothing of invention in the mechanical construc- 
tion by which the complainants jinite the two together. The only 
question then is, are the two when brought together a patentable 
combination? Do the two as combined by complainants contribute 
to a new mode of opération or produce any new and common resuit ? 
I do not see how it can be so contended. The boiler, just as before, 
produces the steam, and just as before it is conveyed by a pipe into 
the processing vessel, and being there confined it acts upon the cans 
just as before, producing the same results by precieely the same 
opération. 

The complainant claims that his eontrivance bas for its object to 
economize steam, to faciliate the removal of the cans, and to increase 
generally the efficiency of the apparatus. It may be that by placing 
the kettle upon and partly within the boiler be has accomplished 
thèse objecta, but it seems to me that what he has done are mère dé- 
tails of construction, and do not approach invention. In Atlantic 
Works V. Bradi/, 107 U. S. 200, [S. C. 2 Sup. Ct. Kep. 225,] the 
suprême court has declared very plainly that it is not the design of 
the patent laws to grant a monopoly of the improvements and adap- 
tations which in the progress of manufactures f rom time to time would 
occur as the demand for them arises to any skilled meehanic or oper- 
ator. If, for the use of any class of persons engaged in putting up 
canned goods, it is more convenient and economical to hâve the steam 
processing kettle placed on and sunk partly into the boiler which gén- 
érâtes the steam, instead of placed alongside of it, it was an arrange- 
ment the virtues of which could not perhaps be aseertained except by 
experiment, but I cannot see that it required invention to suggest it, 
or that when so arranged it is a patentable combination of the boiler 
and the kettle. 

The complainant contends that this défense should not be consid- 
ered by the court, because it is not set up by the respondent in his 
answer, but that the défense disclosed by the answer, and to support 
which the testimony by respondent was pertinent, was that the re- 
spondent and not the complainants was the real inventer of the pat- 
ented combination, and that the complainants by fraud had procured 
the patent to be granted to them. Eespondent in his answer "dénies 
that the complainants were the first inventors of the invention pat- 
enteS to them as alleged, but that this respondent is the true, first, 



262 FEDBBAL BEFOBTSB. 

and original inventer of the said deviee, or so much thereof as is pat- 
entable." The answer also contains this statement: 

"Fourth, this respondent charges that said complainants are not the orig- 
inal and flrst inventera of the processing apparatus patented as aforesaid by 
them, but charges that the same was well known and publicly exhibited by 
said Frazier (the respondent) in Baltimore city, Maryland, 132 Thames Street, 
before the date of complainants' alleged invention or discovery of the same, 
whiqh is but an aggregation of old and well-known devices, and producing no 
new and ustfal resuit, and that the foUowing persons of Baltimore city had 
knowledge of the existence of the said invention in said city, and will testify 
in behalf of respondent, to-wit, etc.: 

"Fifth, and this respondent charges that the complainants, well knowing 
this respondent to be the triie, just, and original inventer of said deviee, 
sought to deprive him of the just fruits of his invention, and did, surrepti- 
tiously and fraudulently, obtain from respondent a knowledge of said inven- 
tion, and secretly, and without the knowledge or consent of this respondent, 
obtain a patent therefor by falselyand deceitf ully representing themselvesto 
be the flrst inventors thereof. And this respondent charges that as soon as 
he was advised of the issuing of said patent No. 251,456 to complainants he 
proceeded to the city of Washington and instituted at the United States pat- 
ent-offlce proceedingâ in interférence, and accordingly interférence was de- 
clared, under which the questions of priority of invention will be adjudicated 
and determined." 

The answer, it will be seen, claims that the respondent is entitled 
to a patent, and is striving to obtain a patent, for the very thing pat- 
ented to the complainants; and although, in a parenthetical and in- 
direct fashion, the respondent does intimate that the alleged inven- 
tion is but an aggregation of old and well-known déviées, producing 
no new results, the substantial défense in the answer, and at- 
tempted to be established by respondent's prcof , is that the invention 
and the patent of right belong to him, and that the complainant stole 
it from him. Indeed, the copy of the Shriver patent was not put in 
évidence by respondent until the very last sittiugs for taking testi- 
mony, and more than a year after the first testimony was taken. I 
think, however, that this is a case in which the wantof patentabilityis 
clear, and that, as ruled by the suprême court in Slawson v. Grand Street 
R. Co. 107 U. S. 652, [S. C. 2 Sup. Ct. Eep. 663,] the court may, sua 
sponte, without looking into the answer, dismiss the bill on that ground, 
and that it cannct be the duty of the court to render a money décrie 
for the infringement of a void patent, even though that défense is not 
properly made by the respondent. In the case before the suprême 
court they held that a mère inspection of the Slawson patent showed 
it to be void on its face. It may be that such an inspection merelyof 
complainant's patent would not show it to be void on its face ; but read- 
ing it, as it is proper it should be read, with some knowledge of the 
state of the art, and particularly with a knowledge of the oontriv- 
ances made known to the public by Shriver's patent nearly eight 
years prior to complainant's patent, it then beeomes évident that 
there is nothing new in any of the éléments of the combination, and, 



m'aBTHUR V. BKOOKLTN RAILWAY SCPPLT 00. 263 

indeed, it is not claimed in the patent that there is, and it is plain 
on the face of the patent that, as a combination of old elemèùts, 
there is nothing patentable in the combination. 
Bill dismissed, without costs. 



McAethub V. Brooklyn Eailwat Supplt Co. aûd others. 

(Circuit Court, 8. D. Neu> York. January 2, 1884.) 

Patents — Validity of Rbissued Lettbb!s, No. 2,568. 

Keissued letters patent No. 2,56b, granted upon the surrendor of original let- 
ters patent No. 59,733, for an improved broom, were properly reissued. The 
invention iherein described is tlie same as that described in tiie original Jet- 
tera, and if the claira is enlarged the reissue was, nevertheless, proper m the ab- 
sence of intervening riglits. 

In Equity. 

Eugène N. Elllot, for orator. 

H. D. Donnelly, for défendants. 

Whebleb, J. The right to a decree in this cause dépends upon 
the vahdity of reissued letters patent No. 2,598, dated May 14, 1867, 
granted to William H. Cory, assignée of Thomas Wright, upon the 
Burrender of original letters patent No. 69,733, dated November 13, 
1866, for an improved broom. The questions made are as to novelty ; 
and the propriety of the reissue. The broom is for out-door work, 
and made by doubling small bundles of splints for the brush in the 
middle and inserting the ends through pairs of holes in a wooden 
head, astride the wood between the holes, by which and by a back of 
wood, with a groove for the loop in one or the other, they are held in 
place. Brushes made of looped bristles drawn through single holes 
and held in place by wires through the loops, and by grooved backs, 
and other similar déviées, and patents for similar devices, had existed 
before, but no broom with a head like this had been known or used 
before. The original patent showed a double socket for a handle to 
be inserted on either side to seoure even wear, and described only 
metallic splints, and the claim was for simply a wire broom made 
substantially in the manner set forth. The reissue describes metallic 
or other suitable splints, and the claim is for such splints inserted in 
bundles through apertures formed in pairs, in the base plate of the 
broom, by looping them as described, said apertures being connected 
by a groove or recess to aecomodate the loop and the latter held to 
its place by a back or upper plate substantially as shown and de- 
scribed. The substitution of other suitable splints for wires would 
occur to any mechanic with skill foï making the brooms, and required 
no invention. There is nothing described as invented in the reissue 
that was nôt in the orignal, and therefore the invention described in 



2C± FEDEBAIi REPORTER. 

the reissue îs the same as that described in the original. The claim 
in the original covered the brôom merely. If that would include the 
handle and sockets for it, or the sockets, the reissue is for less, for it 
does not include either. It is merely for the splints so inserted in 
the head and fastened, making a broom. If the claim is really en- 
larged, as the reissue was taken out so promptly, and the invention 
is the same, and no rights of othera are shown to hâve intervened, 
the reissue would seem to be proper. Hartnhorn v. Eagle Shade Roller 
Co. 13 Fed. Eep. 90. But as the head was new, and included in 
the claim of the original, that could not be taken without infringe- 
ment by the use of équivalents for the wires of the original, and there- 
fore the claim may not be really enlarged at ail. In this view the 
orator seems to be entitled to the usual decree against infringement. 
Let a decree for the orator be entered according to the prayer of 
the bill, with costs. 



The James P. Donaldson. 
(District Court, E. B. Michigan. July 9, 1883.) 

1. TowAGE— Choice op Ro0te— DISCRETION ov Master. 

Where the propriety of the gênerai course to be taken by a tow from oae 
port to another depeads larguly upon the season of the year, the state of the 
weather, the velocity of the wiiïd, the probabillty of a storm, and the proxim- 
ity of harbors of refuge, the choioe of a route is usually within the discrétion 
of the master of the tug ; and if he has exercised reasonable judgment and skill 
in his sélection he will not be held in fault, though the court may be of opin- 
ion that the disaster which followed would not hâve occurred if he had taken 
anolhor route. 

2. Same— Hbpusal to Cross Lakb— Btohm. 

A like rule obtains with référence to the condnct of the master in refusing 
to cross the lake or turn back to the port of depariure in lace of a storm. 

3. Bame — Intoxication op Master. 

The intoxication of a master upon duty ought not to be inferred from 
slight circumstances equally consistent with a différent theorj', or from the 
equivocal testimony of one or two dissatiafied seamen, when flatiy contradicted 
by the remainder of the crew. 

4. Same— Abandonmbn'j- of Tow — Gênerai. A ver âge. 

The abandonment and villimate loss of a tow of bargrs to save the tug from 
destruction, and the subséquent arrivai of the tug in a port of safety, does not 
vest in the owners of the barges a claim against the tug for contribution in 
gênerai average. 

In Admiralty. 

Thèse were Consolidated libels against the propeller James P. Don- 
aldson, to recovèr for the abandonment and subséquent stranding and 
loss of the barges Eldorado and George W. Wesley, some three or 
four miles below Erie, Pennsylvania, upon the evening of November 
20, 1880. The oonceded facts were substantially as foUows : That 
the barges in question, together with the barge Bay City, left Buffalo 



THE JAMES F. DONALDSON. 265 

in tow of the Donaldson about 9 p. m. of November 19th, bouud for 
Bay City, Miehigan. None of the tow were laden except the Bay 
City, which carried a small cargo of coai. There was a light breeze 
from the S. E., which changed about 3 in the morning to the south- 
ward and westward, and became somewhat fresher. It continued S. 
W. and S. S. W. during the entire day, with indications of veering still 
further to the westward, and by evening was blowing a gale from S. 
S. W. On leaving Bufifalo, the propeller took a S. W. course, in 
order to obtain the advantage of smoother water off the S. shore, 
and kept substantially the same course until about dark, when the 
lights of Erie harbor were made, eight or ten miles distant. The 
progress of the tow during the whole day bad been very Slow, not ex- 
ceeding two and one-half miles per hour, and for some time pribr to 
the abandonment the propeller could do little more than to keep her 
tow headed to the sea. About 8 or 8:30 o'clock, the wind, which 
had been blowing hard from S. S. W. by S., suddenly veered into a N. 
W. or W. N. W. squall of great violence, accompanied by gusts of 
snow, striking the Donaldson on her starboard bow, and forcing her 
head around toward the shore so f ar that she was heading nearly S. 
J E. during its continuanee. This squall lasted from six to ten min- 
utes. During its continuanee the Donaldson and her tow, with 
wheel hard-a-port, drifted helplessly before its fury, until, according 
to the theory of the propeller's crew, they had corne within about 
three-quarters of a mile of the shore, when the squall ceased as sud- 
denly as it had arisen, and the wind dropped back instantly to S. W. 
by S., and so continued for 20 or 30 minutes. About 9 o'clock a 
second squall struok the tow, even barder than the first. The pro- 
peller immediately put her wheel hard-a-port, but without effect. 
She continued to swing off before the gale, heading for the shore. 
When she had drifted to within about 600 feet of the reef which 
Unes the shore at that point, seeing there was no escape except by 
flight, she gave the proper signal, cast oflf her line, abandoned the 
barges, and made for the entrance to Erie harbor, and there came to 
anchor. The barges drifted ashore and were lost. 

The libelant charged the master with the following faults : (1) In 
failing to take the usual and proper course up the lake. (2) In not 
keeping far enough from the shore to handle his tow and to come 
round in case of a sudden squall or high wind from the west ; and in 
leaving the deck to his mate without sufScient cause. It was also 
charged in this connection that the master was intoxicated during 
the afternoon and evening. 

Moore é Canfieli, for libelants. 

H. H. Swan, for claimants. 

Brown, J. I will proceed to consider the several allégations of 
négligence charged against the master of the propeller. 

1. In regard to the gênerai course of thé tow in leaving Buffalo. 
The usual and ordinary course up the lake from Buffalo to the mouth 



266 FEDERAL REPOBTBB. 

of the Détroit river la W. by S. f S., considerably to the northward 
of the course actually taken. This would carry the tow close to 
Long Point, and thence in a straight course to the narrow channel 
between Pointe Au Pelée and Pointe Au Pelée island. Had Cap- 
tain Towle adopted this course, it is very probable that he could 
hâve taken shelter behind Long Point and weathered out the gale, 
as several other vessels did which left Buflfalo about the same time. 
But the wind was from the S. E., the season was late, and the v?eather 
treacherous. By taking the course along the S. shore he could secure 
much smoother water, and would easily hâve been able to make the 
harbor of Erie, had not the wind kept canting to the westward and 
increasing in violence. There is some testimony tending to show 
that a S. E. wind at that season of the year frequently, b.ut not in- 
variably, changes to a gale from the S. W. or W.; but as the wind was 
light when the tow left Buffalo, I think it is demanding too much of 
the master to require him to forecast the weather for the following 
day. We hâve no right to expect in him greater weather wisdom 
than is found among the most experienced and scientiâc observera. 

There is a great eonflict of testimony as to the propriety of the 
course taken by the tow in leaving BufEalo. Some vessels which left 
on the same day took the northerly route and gained shelter behind 
Long Point. Others took the southerly route and made the harbor 
at Erie before the gale struck them. I think it is clearly one of 
those caRes where the master might, in the exercise of sound judg- 
ment and reasonable discrétion, hâve taken either course withoutbe- 
ing chargeable with négligence. His choice, of course, was largely dé- 
pendent upon the season of the year, the state of the weather, the 
velocity of the wind, the probability of a storm,,and the proximity of 
harbors of refuge, and we are not inclined to review his judgnient in 
that partioular. The disaster which befelhim undoubtedly tends to 
show that he niade the wrong sélection, but the propriety of his ac- 
tion must not be determined by the resuit. He can only be chargeable 
with négligence when he takes a course which good seamanship 
would deem unautho'rizçd and reckless. "The owner of avesseldoes 
not engage for the inf allibility of the master, nor that he shall do in an 
emergency preeisely what, after the event, others may think would 
hâve been the best." The Hornet, (hawrence v. Minturn,) 17 How. 
100; The Star ofHope, 9 Wall. 230; The W. E. Gladivish, 17 BJatchf. 
77, 82, 83; The Mohawk, 7 Ben. 139. The Clematis, 1 Brown, 
Adm. 499. . , , 

Libelants also claim in this connection that the propeller could 
either hâve crossed the lake and taken refuge under Long Point, or 
could hâve corne about and returned to Buffalo as the master saw the 
storm approaching. I do not think he was bound to do this. So long 
as he could make his way against the wind he was as likely to make the , 
harbor of Erie in safety as he was to make Long Point; indeed, it 
would seem, with the wind blowinga gale from the S. W., there would 



THE JAMES r. DOSALDiON. 267 

have been lack of good Judgment in the master exposihg himself to a 
beam wind and sea, by attempting to cross the lake. Whether he 
shoiild attempt to turn about and make the harbor of Bùffalo was 
also a question upon which he was at liberty to exercise bis judg- 
ment. He deemed it a more prudent course to proceed directly to 
Erie, and I am by no means satisfied that he was not correct. 

2. In not keeping further from the shore as the propeller ap- 
proached Erie. It is charged in this connection that Capt. Towle 
was under the influence of liquor that afternoon, and left the deck at 
the time he was most needed, to a mate who had no knowledge of the 
shore at that point. There was no question made of Capt. Towle's 
gênerai competency, and I can see nothing to criticise in his manage- 
ment of the steamer after he took command. The charge of intoxica- 
tion rests upon his admission that he drank in a saloon on the day 
he left Buffalo ; that he had sent on board a jug of whisky as a part 
of the sea-stores which he kept in his room, and that there was an 
empty whisky bottle found on the floor the morning after the acci- 
dent. Webster, the steward, who found the empty bottle, testified 
that the captain's appearance that night indicated to him that he had 
been drinking; that his eyes were red, and he looked stupid. But he 
says he saw nothing otherwise to indicate that he had been drinking, 
and that this appearance might hâve been owing to his facing the 
storm. This is also corroborated by the testimony of one or two oth- 
ers of the crew, who confessed to havin^ quarreled witb Capt. Towle. 
It is denied, not only by Capt. Towle himself, who swears that he 
drank nothing that day, and that there had been no whisky in the 
bottJe for three months, but by ail the rest of the crew, who swear 
that they never eaw or heard of his drinking too much while upon 
the propeller. It is pertinent in this connection to notice that the 
pleadings give no intimation that such an accusation was contem- 
plated, nor was it suggested by the libelant in his testimony before 
the steam-boat inspectors at Port Huron, who inquired into the cause 
of the loss. Upon the whole, it does not seem to me that the offense 
bas been proven. So grave a charge as this ought to be substan- 
tiated by something more than trifling incidents which are quite con- 
sistent with another theory, and the testimony of two or three disaf- 
• fected men, contradicted, as it is, by nearly the entire crew. 

The most serions question in the case is whether the propeller 
kept her tow as far away from the shore as she should bave done 
under the circumstances. As I hâve already observed, I do not think 
the master was bound to contemplate the contingency of turning 
about and going to Buffalo, or of crossing the lake under a beam 
wind and seeking shelter atLong Point, whèn he was already so near 
to Erie, but he was bound to keep far enough from shore to escape 
the danger of running upon the reef at that point as the wind and 
sea then were. Capt. Towle's watch ende'd at noon, but as the 
weather was heavy he remained on deck until 5 o'clock, when he left 



268 FEDERAL REPORTER. 

the propeller in charge of the mate, an experieneed seaman, but not 
very familiar with the approach and entry to the harbor at Erie. 
Between 7 and 8 o'cloek he came on deck agàin. The tow was then, 
as he claims, from a mile to a mile and a half from shore, with no in- 
dications of immédiate péril. Libelants, however, claim that she had 
been allowed by the mate to drift to within a half a mile of the shore, 
and was nearer than was customary or safe for vessels in entering 
the harbor. There is a very considérable conflict of testimony upon 
this point. While I am disposed to give considérable weight to the 
testimony of Henry, the keeper of the light at the Beaoon ranges ; of 
Clark, who was in charge of the life saving-station ; and of Pherrin, 
who lived about four miles from Erie and very close to the shore; at 
the same time it is entirely possible that their observations might 
hâve been made after the first squall had struck the tow and when 
she had undoubtediy gotten much to the southward of her proper 
course. The testimony of the crew of the propeller is substantially 
that she was kept upon the usual heading towards the Erie lights, 
and in the darkness and storm of that evening it must hâve been 
very difîScult for those upon the tow to détermine their distance from 
the shore. Libelant Slyfiield admits he could not tell the distance. 
Upon the whole I do not think libelants hâve made out this branch 
of their case by a prépondérance of testimony. 

This incïudes ail the charges of négligence which were urged upon 
the argument. In my opinion, the loss was occasioned by a péril of 
the sea. The disaster occurred during the prevalence of the worst 
storm of the season of 1880. Ail the ship-masters who were exposed 
to it united in pronouncing it a "living gale of wind, " and one of the 
most sudden and violent within their memories. The report of the 
signal service flled characterized it as "a f urious westerly gale; a thick, 
blinding snow storm." Such was its violence, at the very time the 
Donaldson was struggling ofF the shore, that the steamers which had 
taken refuge under Long Point were obliged to keep their engines 
working at f uU speed, and even then could not hold themselves up to 
their anchors, while at least one barge was lost there. In Erie har- 
bor another powerful steam-barge, during the same squall, had:to let 
go her barges, beeause she could not hold them. With such weather 
as this in sheltered roadsteads, it is eàsy to conçoive the péril to 
which the Donaldsqn with her tow was expôsed in making their way 
along the Open lake, with f urious squalls driving them directly upon 
a iee shore. While the conduct of the tow may not hâve been above 
a searçhing criticism, we think it quite apparent that it would hâve 
been useless to contend against the f urious squalls from the N. W.; 
and that the propeller çannot be justly held in fault for abandoning 
her tow andseeking safety where she côuld find it. Indeed, itwas 
not claimed but that the abandonment, when actually made, was not 
necessary to save the propeller. 

3. But it is urged by libelants that even if the propeller be exoner- 



THB JAMES P. DONALDSOSr. 269 

ated from ail charges of négligence in respect to tbe conduct of her 
tow upon that occasion, she is still liable for her proportion of the 
value of the losfc barges, in gênerai average, — that hère was a common 
danger ; a danger imminent and apparently inévitable, in which ail 
participated; a voluntary jettison of the barges for the purpose of 
saving the propelier; or in other words, a transfer of the péril from 
the whole to a part of the tow; and that this attempt was successful; 
and tùerefore the propelier may be called upon for contribution. 
The proposition is a novel and interesting one, I know of no case 
in which it has even been disoussed. Indeed, the very fact that no 
olaim of this description has éver been made is worthy of suggestion 
as indicating the view generally taken by the profession. It is true 
there are in this case many of the éléments which go to entitle the 
barges to a gênerai average contribution, as stated in the leading 
case of Barnard v. Adams, 10 How. 270; still I know of no case 
wherein the principle of mutual contribution has been extended be- 
yond the ship, her boats, tackle, apparel, fumiture, and cargo. I 
understand the law of gênerai average to be an outgrowth of the law- 
maritime as applied to the carriage of goods by sea. It is never 
applied to cases of a voluntary sacrifice of property upon land when 
made to préserve the property of others from a greater loss. For 
instance, if the house of A. be torn down, or is blown np in a con- 
flagration, to save the houses of B., C, and D,, A. has no right to 
contribution, be the évidence never so clear that the sacrifice was suc- 
cessful, and saved the property of B., C, and D. from destruction. 
Indeed, the cases hâve gone so far as to hold that the parties them- 
selves who commit an act of déprédation for the public safety are 
not liable in trespass, Says Judge Dillon, in his work upon Munici- 
pal Corporations, vol. 2, § 766 : 

"The rights of private property, sacred as the law regards thém, are yet 
subordiuate to the higher demands of the public welfare. Satus populi 
snprefha est lex. Upon this principle, in cases of imminent and urgent public 
necessity, any individual or municipal offlcer may raze or demollsh houses 
and other combustible structures in a city or compact town, to prevent the 
spreading of a destructive conflagration. This he may do independently oî 
statuts, aûd without r^sponsibility to the owner for the damages he théreby 
sustains." • 

It was said, sô long ago as the i'eigh of Edward IV., that "by com- 
mon law every man may corne upon my land for the ' défense of thé 
realm.'" 

In tbe Saltpetre Case, 12 Coke, 13, it is said that "for the coinmori- 
wealth a man shall suffér damage; as, for saving of a city or town, a 
house shall be plucked down if the next be on fire ; and the suburbs of 
a city in time of war, for the common safety, shall be pluckéd down,— 
and a thing for the commonwealtb every man may do withorit béing 
liable to an action." 

In Mouse'a Case, Id. 6S, certain paasengers upon a ferry-boat from 
Gravesend to London cast overboard a hogshead of wine and other 



270 FEDEBAL BEPOBTEB. 

ponderous things to save the boat from being swanaped in a violent 
tempest. It was held that as this was a case of necessity for the sav- 
ing of the lives of the passengers, the défendant, being a passenger, 
was JTistiûed in casting the hogshead of the plaintiff out of the barge. 
See, also, Governor, etc., v. Meredith, 4 Term E. 794; Respublica v. 
Sparhawk, 1 Dali. 357; Taylor v. Plymouth, 8 Metc. 463; Maj/or, etc., 
V. Lord, 17 Wend. 285 ; S. C. 18 Wend. 126. A like principle was ap- 
plied in the Eoman law, wherein it is said that if, by the force of the 
winds, a ship is driven against the cables of another, and the sailors 
eut thèse cables, no action will lie, if the ship cannot be extricated in 
any other way. 

In the case of The John Perkins, 21 Law Eep. 87, Mr. Justice Cub- 
Tis decided a case which involved somewhat the same principle as 
the one under considération. In this case one of the crew of a fish- 
ing schooner eut her cable in order to prevent a collision with an- 
other vessel and the destruction of both, and claimed a gênerai aver- 
age contribution for the loss of bis cable and anchor. Judge Ctjetis 
dismissed the libel, saying that, in his opinion, the only subjects 
bound to make contribution are those which are united together in a 
common adventure and placed under the charge of the master of the 
vessel, with authority to act in emergencies as the agent of ail con- 
cerned, and which were relieved from a common péril by a voluntary 
sacrifice made of one of those subjects. The only opinion I hâve 
found to the contrary is that of Casaregis, an eminent civil law writer, 
who puis the caseof the destruction of a vessel in port, lyingnear to 
another vessel which is' on fire, to prevent the fiâmes from spreading 
and being communicated to other vessels. He considers the com- 
pensation to the owner of the vessel thus destroyed as a proper sub- 
ject of maritime contribution by the owners of the other vessels and 
cargoes which were saved from the impending péril. Disc. 46, No. 
4563. I hâve found this opinion whoUy irreconcilable with the opin- 
ion of Mr. Justice Ctjbtis above quoted. 

From this review of authorities it is quite apparent that the doc- 
trine of gênerai average contribution arises from the peculiar rela- 
tions existing between the ship and her cargo. Mr. Lowndes finds 
the underlying principle in the agency of the master to act for the 
owner of ihe cargo in cases of unforeseen danger. Lowndes, Av. 
14-16. Thi^ would clearly hâve no application to the case of a ves- 
sel whose master remains in command of his own ship, and usually 
bas no opportunity of conferring with the master of the tug in emer- 
gencies of this description. The master of the tug is in no sensé the 
agent of the tow for any such purpose. 

The différence between the relatiop.s of a ship to her cargo and 
those of a tug to its tow will not escape the observation of the most 
casual observer. Ordinarily, the master of the ship bas but a single 
duty to perform, namely, the delivery of bis cargo to the consignée ; 
and for the time being, and for that purpose, the owner of the cargo 



THE -ÏAliibg t>; DÔNAIiDSON. 2Tl 

yîelds possession and stbdîcates. his iaufchority to the master. ' For thé 
performance of this duty the master binds himself, his ship, and ita 
owners by the most stringent obligations of the law. His undertak- 
ing is absolute that his sliip is seaworthy; that he and his crew are 
compétent and honest; that he will use due care in lading and unlad- 
ing his cargo ; that he will protect it from thieves ; and will navigate hia 
ship to her port of destination without unnecessary delay or déviation. 
Indeed, he is liable for every mishap to the cargo not attributable to 
the owner's fault, saving and excepting only the périls of the sea and 
the acts of public enemies. He cannot sell or hypothecate the cargo, 
except in case of urgent necessity, and not even then, without com- 
munication with the owner, if such communication be possible. 
Even if the vessel be wrecked, and his goods are cast upon the shore, 
neither he nor his crew are entitled to salvage for preserving them. 
Jones, Salv. 20. 

On the other hand, if the cargo be once laden on board, the mas- 
ter has the right to carry it to its destination and detain it for pay- 
ment of freight. Even if the voyage be temporarily interrupted or 
broken up, he has the right to tranship the cargo and forward it by 
another vessel. From the intimacy of their relations, from the com- 
mon danger incident to their common adventure, and to prevent the 
master from sacrificing the cargo at the expense of the ship, there is 
attaohed the further anomalous feature that ail sacrifices rendered 
neeessary by the éléments shall be borne mutually by the ship and 
cargo; whether the loss be occasiohed by cutting away a mast or 
throwing overboard a baie of goods, it shall be borne by the owners 
of the ship and cargo in exact proportion to the value of their re- 
spective interests. 

On the contrary, the obligations of the tug to her tow are dis- 
charged by the employment of reasonable care and gkill. The mas- 
ter of the tug guaranties that she is seaworthy and properly equipped ; 
that he will furnish the motive power and will use his best en- 
deavors to take his tow to the place of destination in safety. He 
does not, however, take charge of the ship except so far as may be 
neeessary to direct her course. In ail other respects the master and 
crew of the tow hâve entire control of her movements, and may adopt 
such independent measures for her préservation and safety as their 
own judgment may dictate. He does not insure the ship against 
anything but the conséquences of his own négligence, nor her cai'go 
from the déprédations of thieves or the barratry of the crew. If the 
performance of his contract be interrupted by any unforeseen or ex- 
traordinary péril not within the contemplation of the parties, such 
as the slipping or breaking of a line in a heavy sea, he is at liberty 
to treat the original contract at an end; and while he has no right 
to abandon his tow except to save his own vessel, he may recover 
salvage as if he were a stranger, if he has put his own vessel in péril 
to rescue her. The Saratoga, Lush. 318; The Robert Duon, 4 Prob. 



272 FEDEBAIt BEPOSTEB. 

Div.121; 8.C.5Prob.Div.54; Bo/ v. TFass, 2 Sawy. 389 ; TheJ.C. 
Potter, 3 Mar. Law Cas. 506, 

Ab observed by Lord Kingsdown, in delivering the opinion of the 
privy council in the case of The Minnehaha, Lush. 335, 347: 

"Slie raay be prevented from fulfllling her contract by a vis major, by acci- 
dents which were not contemplated, and which inay render the f ulflllment of 
her contract impossible, and in such case, by the gênerai rule of law, she 
is relieved from her obligations. But she does not become relieved from 
her obligations because unforeseen diffleulties occur in the completion of 
her task ; because the performance of the task is interrupted, or cannot be 
completed in the mode in which it was orlginally intended, as by the breaking 
of the ship's hawser. But if, in the discharge of this task, by sudden vio- 
lence of the wind or waves, or other accidents, the ship in to w is placed in dan- 
ger, and the towing vessel incurs risks and performs duties which are ûot 
within the scope of her original engagement, she is entitled to additional ré- 
munération for the additional services if she be saved, and may claim as a 
salvor, instead of being restricted to the sum stipulated to be paid for mère 
towage. " - 

The rule is the same with respect to pilots. The Eolus, 1 Asp. 
Mar. Law Cas. 516, and note; The Hope, [Hobart v. Drogan,) 10 Pet. 
108 ; Akerblom v. Price, 4 Asp. Mar. Law Cas. 441 ; The Wave, Blatchf. 
& H. 235. 

It is not claimed that the distinctions hère taken are décisive 
against the allowance of a gênerai average contribution in cases like 
thèse. They do, however, show that the whole law upon this subject 
has arisen out of the anomalous relations between the ship and cargo — 
relations such as do not exist between a tug and tow. In my opin- 
ion, the law of gênerai average is confined to those cases wherein a 
voluntary sacrifice is made of some portion of the ship or cargo for 
the beneflt of the residue, and that it has no application to a contract 
of towage. 

A decree will be entered dismissing the libels, with costs. 



WHITTBNTON MASUI'g 00. V. MBMPHIS ife OHIO EIVEB PAOKBT 00. 273 



Whittenton Manof'g Co.. î). Memphis & Ohio Eiveb Packet Co. 

and others. 

{Circuit Court, W. D. Tennessee. November 26, 1883.) 

1. Rbmovai, of Causkb — Rkplbading— Constitution Ail Law— Trial bt Jubt. 

Where a suit at common law has been removed froin a state court in which 
it has been conducted under the forms of procédure belonging to a court; of 
equity, the constitution and laws of the United Btates require that there must 
be a repleading to conform to the practice of the fédéral court as a court of 
law.. 

2. Bamb— Removal Actb Constkdbd— Effbct of the Removed Pleadings. 

This repleading may require more than one suit, and on both sides of the 
doclîet, but this is unavoidable in a jurisdiction Ijeeping up as persistently as 
the fédéral laws do the distinctions between law and equity ; and the force and 
eliect of the proceedings ia the state court are preserved by moulding them to 
suit the requirements of the case in the process of distribution between the two 
juriedictions. 

3. Bamb— Unipormity m the Fbdbrai. Praotiob. 

It is only by this construction of the removal acts that the distinctions be- 
tween law and equity jurisdiction can be observed ia practice, and that uni- 
formity secured which it is plaiufy their intention to enforce. There cannot 
be one practice for causes removed from the state courts and another for suits 
originaily commenced in the fédéral court. 

4. Bame— Section 639, Rev. 8t.— Act of Mahch 3, 1875— PartiaI/ Repeal. 

The laat clause of section 639, Rev. St., talien from the act of .Tuly 27, 1866, 
enacting that " the copies of the pleadings shall hâve the same force and effect 
in every respect and for everp purpose as the original pleadings would hâve had 
by the laws and practice of such state if the cause had reniained in tlie state 
court," has been repealed by the act of March 3, 1875. 
6, Bame— Pleadtno under the Tennessee Code. 

Although the Code of Tennessee does not permit an action to fail for any 
defect of form in pleading and allows a suit "upon the facts of the case," it 
does not authorize a suit at common law to be prosecuted in a court of law 
under the form of pleadings belonging to a court of equity. 

Motion to Eeplead. 

The plaintiff, under an aet of the Tennessee législature of March 
23, 1877, c. 47, which enacts that the jurisdiction of ail civil causes 
of action now triable in the circuit court, except for injury to person, 
property, or character, involving unliquidating damages, is hereby 
conferred upon the chancery court, which shall hâve and exercise 
concurrent jurisdiction thereof along with the circuit court, filed its 
bill in the chancery court of Shelby county to recover damages from 
the défendants for an alleged breach of contract by failure to deliver 
to the plaintiff in the same good order in which they were received 
for transportation about 1,000 baies of cotton. The bill, which is in 
the usual form of a bill in equity addressed to the chancellor, pro- 
ceeds, in about 27 pages of manuscript, to relate in détail the purchase 
by plaintiff of the several lots of cotton ; that thèse lots were, respect- 
ively, in the warehouse of the vendors, where they were select,ed, ex- 
amined, sampled, etc., and found to be in good condition and ship- 
ping order; that, after the purchases, they were sent either to the 
Mammoth Cotton Compress Company or to the Union Cotton Com- 
Y.19,no.5— 18 



27é Î-BDBBAIj bepobteb. 

press Company to be compressed and prepared for shipmeni accord- 
ing to a contract between the plaintiff and said companies, at au agreed 
price ; that after compression the baies were delivered to the défend- 
ant packet Company for transportation to theplaintifï'smills in Mas- 
sachusetts; that the défendant packet company executed bills of lad- 
ing, wMch are set out byexhibits, etc. 

The bill then states that the cotton was shipped to plaintifï's mills, 
atid proceeds with particularity to state, on information and belief, the 
dates, names of the steamers of the packet company, the several lots, 
and the compress company from which received by the steamers, and 
other matters conneeted with the shipments ; that the cotton reached 
plaintiflf, but that "when so delivered the said cotton was not lu good 
order and condition," describing the condition as received, etc. 

The bill "charges," on information and belief, that "the cotton was 
carelessly and negligently exposed to the weather, without adéquate 
protection or care by the said Mammoth and Union compress com- 
panies and the packet company, and that the damage and injury done 
to it were produced by, or the necessary resuit of, the négligence and 
want of care of said companies respectively, and while they so had 
custody," etc. 

It then allèges that plaintiff notified the railroad company of its 
claim for damages, and subsequently notified the packet company and 
the compress companies, ail refusing compensation, and avers that 
the whole damage done by the défendant companies amounts to f 5,000, 
and that the three défendants are jointly and severally liable for the 
same. 

The bill further states that the reeeipts taken by the plaintiff from 
the compress companies respectively were delivered to the packet 
company, and that the plaintiff believes they are now under the con- 
trol of défendants, orone of them, and prays "they be required to pro- 
duce the same for the purposes of this suit and to be used on the hear- 
ing," etc. 

Another allégation of the bill is that, since the transactions men- 
tioned, the two compress companies hâve become merged into a new 
compress company; that plaintiff had endeavored to procure infor- 
mation necessary to enable him to détermine when, and how, and by 
whom the damages to the cotton was done, by addressing a letter to 
the company, etc., and that no response had been made, the letter 
being exhibited and fîled as part of the bill. 

The bill also charges that the Merchants' Compress & Storage Com- 
pany, in the place and stead of the other two compress companies, is, 
with the packet company, jnstly indebted to the plaintiff, "by reason 
of the damage done to the cotton aforesaid, in the sum of $5,000 and 
interest." 

The bill names the agent of défendant or its superintendent, and 
prays process to make the packet company and the compress com- 
pany défendants; that they be required to answer; that the amount 



WHITTENTON MANDF'g CO. V. MEMPHIS <fe OHIO BIVBB PAOKBT 00. 27fi 

of the damage be ascertained and fixed, and for the proper Judgment 
or judgments and exécution, and that, if necessary, attachment issue 
againsfc the non-resident Oliio corporation, — the paoket company, — 
and for gênerai relief. 

Subpœna issued, and was served, but no attachment, The com- 
press and storage company appeared and demurred, assigning three 
grounds of demurrer, and the packet company also appeared and ûled 
a separate demurrer on four grounds. Without disposing of thèse 
demurrers the plaintifp obtained leave to amend the bill, and by an 
amended bill, in about six additional pages of manuscript, states sub- 
stantially that it is advised that the cotton was in the custody of the 
compress companies, as the agents of the packet company, from the 
time the bills of lading were signed until the same was delivered to 
the respective steamboats. The amended bill prays the same relief 
as the original bill. 

After the amended bill was filed the plaintiff removed the case to 
this court, when the transcript was filed and docketed on the law side. 
The défendants moved that the plaintifif be required to replead ae- 
cording to the practice of the courts in suits at law. 

H. G. Warinner and Mctcalf é Waiker, for the motion. 

Randolph é McHenry, contra. 

Hammond, J. In whatever form the subject bas presented itpelf , — 
whether as a matter of jurisdiction, pleading, or practice, as to 
methods of relief, défenses, review, or what not, — the suprême and in- 
ferior fédéral courts bave, with inexorable firniness, insisted upon pre- 
serving the essential distinctions between law and equity by adminis- 
tering them separately, as required by the constitution and laws of 
the United States. The cases are far too numerous for citation 
hère, but will be gathered in a foot-note for consultation in support 
of this opinion. They commence with the organization of the courts, 
and are to be found in almost every volume of the reported décisions. 
It is a distinction that inheres in the System by virtue of constitu- 
tional commands, and it will be found upon close observation that 
the fédéral constitution bas protected the right of trial by jury in a 
manner that imposes restrictions upon législative power more effect- 
uai, perhaps, than those found in many of the state constitutions. 
It necessarily results from the requirement that, in ail controversies 
of légal cognizance, there shall be preserved a right of trial by jury, 
and that no fact so tried shall be re-examined in any court otherwise 
than aecording to the rules of the common law, that the original trial 
shall be likewise aecording to those rules in ail essential and substan- 
tial particulars. Merely taking the verdict of 12 men, no matter how, 
is not, in the sensé of our fédéral constitution, a trial by jury ; and 
it is impracticable, as well as impossible, to oonduct the original trial 
aecording to rules unknown to the common law, and in subversion of 
them, and then, on re-examination by writ of error in an appellate 
. jurisdiction, or, it may be, on motion for new trial, or otherwise, in 



276 FEDEBAL EEPOBTEE. 

the tribunal of first instance, to obey this mandate of the constitu- 
tion, and eonduct those proceedings "according to the rules of the 
common law." Const. U. S. Amend. 7. The whole proeeeding, 
from beginning to end, must be, ex necessitate rei, a oommon-law pro- 
eeeding; not necessarily according to the précise forms of the com- 
mon law, — reformation in procédure being open to législation, — but 
always there must be a trial substantially according to the course of 
the common law. 

Now, this considération alone has convinced me, aside from ail 
others, that when parties bring their "suits at common law" from a 
state court of equity, where, by state législation, they hâve been per- 
mitted to eonduct them under the forms of procédure known to those 
courts in ancient times, into this court, they must, in the nature of 
the case, by repleading, couvert their "bills," exhibits, disclaimers, 
pro confessas, answers, cross-bills, pleas, replications, pétitions, affi- 
davits, jurais, and the like into déclarations and pleas according to 
the forms for trials of suits at common law prevailing, not only in 
this court, but as well in the law courts of the state of Tennessee. 
Even in the state court of equity, from which this suit cornes, when 
a jury ia demanded, as it may be, the trial is not on the bill, answer, 
etc., but, by statute, the parties are required to make up their issues 
in a separate writing for the jury, which is, in effect, what we require 
them to do hère by repleading. Mànifestly, that method of sifting out 
the issues to be tried is not open to this court, and it can only be ac- 
complished by repleading. 

It matters not that this may resuit in two or more separate suits, 
with some at law and some in equity. This comes from state légis- 
lation allowing the parties to litigate their several controversies in 
one suit, a method forbidden to this court, which must administer 
law and equity separately. If the parties deem this an advantage 
they should remain in the state court where it can be done. Nor is it 
practicable to hâve a différent rule for a suit which is removed when 
the "bill" only has been filed, from one which is brought hereat some 
later stage. It would be a hybrid proeeeding, producing confusion, if 
not disadvantage, to the défendant, to allow the plaintiff to use an 
elaborate and voluminous "bill" as the vehiele for his oase and con- 
fine the défendant to thé simple form of a plea at law. 

Acting on thèse views some years ago, in the case of Levy v. Amer. 
Cent. Ins.Co., (not reported,) it was ruled by this court that there must 
be, in such cases, a repleading when the suit is removed; and the 
practice has been so until challenged in this case. In that case, as 
in this, the state chancery court had acquired jurisdiction under the 
act of March 23, 1877, c. 47, giving the equity courts jurisdiction 
concurrently with courts of law of ail civil causes not founded in tort. 
Acts 1877, p. 119. And, it may be remarked, that in addition to 
this source of jurisdiction over purely common-law suits, the state 
"hancery courts hâve, for a very long time, under our attachment 



WHITTENTON MANUf'g 00, V. MSMPffIS ^ PHIO BIVEB PAOKKT 00. 277 

laws, and also by the statates regulating their praetice, acquired jur- 
isdiction over ail manner of civil causes of légal cognizance; as, for 
example, by a failure of the parties to objeot to the jurisdietion by 
spécial plea or démarrer, au answer being deemed a wairer of ail ob- 
jections to jurisdietion. The statutory provisions made for afinding 
of facts by a jury in ail equity cases is considered an answer to ail 
constitutional objections to such législation. Tenn. Code, 4309, 4321 ; 
Jackson v. Nimmo, 3 Lea, 597; Scott v. Feucht, 1 Memphis L. J. 40; 
Saudekv. Turnpike Co. 3 Tenn. Ch. 473; 1 Memphis L. J. 3. 

It was, therefore, an important question whether or not, when any 
of thèse causes, of which the state equity court had such a vast and 
almost inexhaustible jurisdietion, areremoved to this court and go to 
the law side of our docket, as ail concède they must, they shall be 
submitted to the jury on the voluminous records and pleadings in use 
in our courts of equity, (for they are ail conducted in that form in the 
state court, and in this form they necessarily corne hère,} or the par- 
ties be required to replead according to the forms of a court of law. As 
before remarked they are not required to be so submitted in the state 
courts, the diffieulty being overeome by statutory provisions requiring 
the parties, under the supervision of the chancellor, to draw up in 
writing, "according to the forms of a court of law," the issues of fact 
to be submitted to the jury. Tenn. Code, 3156, 4468. This provis- 
ion is not, of course, available in this court, and the same end ia 
reached, and can be reached, only by pleading de novo. 

In the case of Levy v. Ins. Co., supra, there was a suit in the chan- 
cery court on a policy of fire iusuranee under the form of a bill in 
equity, which, in addition to a claim for the loss sufïered, prayed, as 
in the case now under considération, for a disoovery, by the agent of 
the Company, of certain papers in his possession, thèse being the 
plaintiff's invoices, and also for an injunction to prevent him from 
sending them away. The défendant eompany filed an answer, and, 
as it might under the state statute, but not under the fédéral prae- 
tice, made that answer a oross-bill, alleging fraud by the plaintifï in 
the procurement of the policy, for which it prayed to hâve the docu- 
ment canceled. Tenn. Code, 4323. The case was then removed by 
the défendant eompany to this court under the act of congress of 
March a, 1875, (18 St. 470.) The plaintiff moved to docket the case 
on the law side of the court, for leave to file a déclaration as at law 
^nd for a rule on the défendant to plea.d thereto. The défendant, on 
the other hand, moved to docket the case on the equity side of the 
court. It was held that the plaintiff should déclare on his policy of 
insurance,. according to our praetice in cases at law, and the défend- 
ant plead thereto, and that if the plaintiff should find section 792 of 
the Eevised Statutes inadéquate to compel a production of the in- 
voices, and should need disoovery thereof or should need the injunc- 
tion he asked, it was manifest that> under our fédéral praetice, be 
must resort to the equity side of the court for that relief in aid of his 



278 FEDERAL EBPOBTEIL 

suit at law, while the défendant must, since we hâve în this court no 
statute permitting an answer to be made a cross-biil, and certainly 
no power in a court of law to grant the relief it asked, likewise resort, 
if need there be, to the equity aide of the court with an independent 
bill or a cross-bill, according to our practice, in any suit the plaintif 
might file on that aide, to restrain the plaintiS's suit on the policy 
until it could be canceled for the alleged fraud. 

Clearly, this was the only possible solution of the complication in 
a jurisdiction keeping up the distinctions between law and equity so 
persistently as the fédéral courts are required to do; and nothing but 
the anomalous législation of Tennessee, which had no efFeet in the 
fédéral court, could unité ail thèse matters in one suit, however dé- 
sirable such a practice might be. Yet there is no need of any new 
cost bonds, or new process in any of thèse several suits in which this 
conglomerate state court suit must be divided, but only a distribu- 
tion of them, according to the congénital demands of our own prac- 
tice; and, if any orders hâve been made, or rights acquired, in the 
state court, thèse are ail preserved in the fédéral court by a like pro- 
cess of distribution ; not by giving to the pleadings exactly the same 
force and effect in every respect which they had in the state court, 
for that is impossible, if the union of ail the causes of action in one 
suit be insisted on hère as one of the rights preserved, but, in ail 
other respects, saving their force and effect in this process of distri- 
bution by treating the bonds, process, pleadings, and orders as if 
they had been made in suits originally coramenoed in the fédéral 
court and the same proceedings had been taken there, and now mould- 
ing them in to one or more suits on either side of the jurisdiction, as 
the circumstances of the case may require. This is preoisely what 
we are commanded to do by the removal aets, and what they mean 
by directing that the pleadings, process, and other proceedings shall 
hâve the same force and effect hère as in the state court, which re- 
quirement of the statute has been so much relied on in argument to 
defeat this motion, as it was relied on in the former case. 

It is now argued,— as it was in that case,— with great earnestness, 
that thèse removal cases are, by force of the statute, on a différent 
footing from those originally brought hère, and that although the act 
of congress by its terme requires that "the cause shall proceed in the 
same manner as if it had been brought there by original process," 
yet, by like -nositive command, "the copies of the pleadings shall bave 
the same force and effect in every respect, and for every purpose, as 
the original pleadings would bave had by the laws and practice of the 
courts of such state if the cause had remained in the state court." 
Eev. St. § 639. It is a sufficient reply to this argument to say that 
nowhere is it manifest that congress intended to hâve one practice 
for original suits and another for rémoved suits, and the contrary in- 
tention of uniformity in ail is apparent from the beginning of thèse 
removal acts to the présent timo, Moreover, there is no more ca» 



WHITTENTON MANUP'o 00. V. MEMPHIS & OHIO RIVEB PACKBT 00. 279 

pacity in our fédéral courts for mingling the separate jurisdiction of 
law and equity in causes removed than in those originally commenced, 
for it is a constitutional séparation that must be preserved; and 
^yhatever may be the power of congress to préserve the substance and 
yet change the form of procédure, until some more spécifie ma- 
ohinery — like that already adverted to in the Tennessee state courts 
for submitting issues to a jury "according to the forms of a court of 
law" where there is such a commingled practice — is provided by 
congress, such a practice is impossible with us. 

I bave already pointed out a more reasonable interprétation of this 
language in the statute, but there is still another answer to the argu- 
ment based upon it. It is to be observed that while a clause in sec- 
tion 3 of the act of March 3, 1875, enacts, as in section 639 of the 
the Eevised Statutes, that the removal cause "shall proceed in the 
same manner as if it had been originally commenced in the said cir- 
cuit court, " and section 6 of , the same act, "that the circuit court of 
the United States shall, in ail suits removed under the provisions of 
this act, proceed therein as if the suits had been originally commenced 
in said circuit court, and the same proceedings had been taken in 
such suit in said court as shall hâve been had therçin in said state 
court; prier to its removal," nowhere does that act contain the last 
above-quoted clause of section 639 of the Eevised Statutes, providing 
that the copies of the pleadings in the state court shall, in every re- 
spect and for every purpose, haye the same force and effect as in the 
Bta,te court. It is clearly repealed by the repealing clause in section 
lb,of the act of March 3, 1875, (18 St. 470-473.) This repealed 
clause of scctionfi39 of the Revised- Statutes had its origin in the act 
of July 27, 1866, from which it was carried into the Eevision, (14 
Stt.. 306, 307.) The act of March ,3, 1875, returns tp the language of 
the judiciary act of September 24, 1789, somewl^at amplified, as. 
amended by the acts of July 27, 1866, and March 2, 1867, but with 
this clause of the act of 1866 omitted. Eev. St. § 639; 1 St. 79; 14 
St. 306, 558; 18 St. 471. And a critical examination of the cases 
cited in the foot-notes will show that the act of 1S75 in the sections 
already cited, taken in connection, with its section 4, which provides 
for the continuing force and efifect of ail process, attachments, injunc- 
tions, etc., bonds, undertakings, seçurities, etc., and-.aU.orders and 
other proceedings prior to removal, has, with the : utmost care, ex- 
pressed the judioial resuit of the construction of ail the-acts preced- 
ing it, including the omitted or repealed clause of the act of 1866, 
which was misleading in its language, and thereforeomîitted. 

Tl}is last act of 1875, eonstrued by the décision?, has a yery plain 
meaning in respect to the subject of procédure after removal; and 
this is, that while every right and substantial advanta,ge the pfirties had 
in the state court prior to removal is preserved tothem with scrup- 
ulous care, in giving them the beneiit of that right, the fédéral court 



280 FEDEBAL BEPOBTEB. 

proceeds, and in the présent state of législation by eongress must pro- 
ceed, according to its own méthode of procédure and rules of practice, 
and not that of the state courts, unless they be substantially the same. 
The fédéral court does not stiekle for any mère idle or technical form, 
but will use on either side of the jurisdiction the removed pleadinga 
as they stand, if by them and through them it can, acting independ- 
ently of state régulation governing the suit before its removal, pré- 
serve the essential distinctions between légal and équitable modes of 
trial and the substantial rights of the parties growing out of those 
distinctions. 

Thèse are in suits of légal cognizance a trial by jury, not necessa- 
rily according to the précise forms, but substantially according to the 
course oî the common law, and, in suits cognizable in a court of equity, 
a trial according to the practice of those courts as prescribed by our 
rules of practice. If the state court pleadings can be held, whatever 
their form, to accomplish this purpose, no repleading can be neces- 
sary, othe'rwise there must be a reformation of the pleadings and a re- 
cast of the litigation to accomplish that resuit, and this dépends upon 
the nature ôf the partie ular suit and the relief sought by it as well 
as the form in whioh it bas been conducted in the state court. 

It is apparent that, in cases like this, there must be, by this rule, 
a repleading in this court, as there must hâve been, if the case were 
to be tried by a jury in the state court, had it remained there. But 
it is insisted that under the practice conformity act of June 1, 1872, 
(17 St. 197; Eev. St. § 914,) this court is bound to the state practice; 
that the Code of Tennessee abolishes ail forms of actions, and allows 
the plaintiff to sue on the facts of the case ; and that ihasmuch as this 
"bill in chancery" states the facts it may, under the state practice, be 
treated as a sufficient pleading in a court of law. I hâve never known 
a common-law suit prosecuted under the forms of a "bill in equity" 
in a court of law in Tennessee. Such a proceeding -would be as much 
of an anomaly in those courts as in the court of king's bench 100 
years ago, notwithstanding our reformed pleadings under the Code. 
There is, therefore, no state practice like that suggested, imposed 
upon this court by the practice conformity act of 1872. On the same 
principle as' that contended for, any letter or séries of letters "stating 
the facts" and claiming damages, or any mémorandum, déposition, 
afSdavit, mémorial, article in a newspapef or magazine, or other 
"statement of the facts" might be filed and treated as a déclaration 
in a court of law. I do not understand the law of Tennessee to be 
so. The Code abolishes ail forms of action so far as to obliterate the 
technical distinctions between them, but still requires pleadings in 
courts of law to be in the form of déclarations and pleas, and the form 
of pétition and answer or bill and answer is not recognized in the 
statutes nor used in practice. The modela prescribed are those of the 
common law, stripped of useless verbiage and those technical char- 



WHITTENTON MANUF'g CO. V. MEMPHI8 <fc OHIO BIVEB PAOKEX 00. 281 

acteristics which distinguish them as actions of assumpsit or ase, 
trespass or trover, and the like,but they are yetin form and substance 
déclarations and pleas and constitute a compact and admirable Sys- 
tem of pleading, which it is a pity the législature has spoiled by giv- 
ing parties the option to plead "as at common law," and it would be 
the more a pity to give a further option of pleading as in equity, which 
we are asked to do in this case. Act 1859-60, c. 33, Teun. Code, 
§ 2917a. 

It is true that no action is allowed to fail because of any defect in 
fonn; and any form complying substantially with the Code require- 
ments would be sustained however inartistic; but, after ail, the Code 
requires that the pleadings shall state "only material facts, without ar- 
gument or inference, as briefly as is consistent with presenting the 
matter in issue in an intelligible form," and "in ail actions at law 
the cause of action shall be stated clearly, explicitly, and as briefly 
as possible." Tenn. Code, §§ 2751, 2881. This would seem to pre- 
clude the argumentative and inferential statements of this "bill in 
equity" and its "exhibits," proper enough in a court of chancery, 
but not at ail like the forms prescribed by the Code for a déclaration 
in suits at law with which substantial compliance is required. Id. 
§§ 2939, 2940. Another section enacts that "Any pleading possess- 
ing the following requisites shall be sufficient : (1) When it conveys 
a reaaonable eertainty of meaning ; (2) when by a f air and natural 
construction it shows a substantial cause of action or idefense." Id. 
2884. This means, of course, any pleading substantially in the 
forms prescribed by the Code ; and the very next section requires the 
court to require a more spécifie statement, if the pleading be defeet- 
ive in the first particular above mentioned. Id. 2885. I do not 
doubt that, taken altogether, the Code requires, in suits at law, a plead- 
ing in the form of a déclaration, but saves to the party stating the 
facts of bis case, in any form whatever, his right of action, subject to 
the power of the court to compel him to reform the pleadings, if not 
already in substantial compliance with the requirements of the Code. 
Nor do I doubt, on the other hand, that, if taken in time, an objec- 
tion to an action at law brought in a state law court, under the form 
of a bill in equity, would be sustained and the party required, as hère, 
to put his pleading in the form of a déclaration at law. Id. 2746- 
2753, 2863-2879, 2880-2940; 3 Meig, Dig. (2d. Ed.) 2140, 2133- 
2151; Cherry Y. Hardin, 4 Heisk. 199, 203; Stover v. Allen, 6 Heisk. 
614. 

The pleadings in a court of equity are so ill-adapted to présent the 
issues to a jury that I doubt if congress itself could impose them on 
a fédéral court of law without giving the act "an unconstitutional 
opération dangerous to the trial by jury." Phillips v. Preston, 5 
How. 278, 289. It certainly could not, without some such contrivance 
as we hâve in the state courts of equity in Tennesee for sifting eut 



282 • FEDERAL EBPOBTEB. 

the issues and presenting them in a more simple form, less embar. 
rassing to the prosecution or défense of a case before a jury. 
Motion granted. 

1. Consult on the subject of the (distinctions between law and equity In 
procédure generally in the courts of the United States the foUowing cases: 

Wisoart v. Dauchy, 3 Dali. 321; RoMmon v. Campbell, 3 Wheat. 212; U. 8. 
y:Éowland, 4 Wheat; 114; Wayman v. Southard, 10 Wheat. 1, 41 ; Farsons v. 
JSedford. 3 Pet. 433 ; Béer s v. HaugMon, 9 Pet. 329 ; Lîvingston v. Story, Id. 652 ; 
Parish v. Ellis, 16 Pet. 451 ; Phillips v. Preston, 5 How. 278; Bennett v. But- 
terworth, 11 How. 674; Ifeves y. Scott, 13 How. 268; Pennsylvania v. Wheel- 
ing Bridge Co. 13 How. 518; Graham v. Bayne, 18 How. 60; Hipp v. Babin, 
19 How. 276; Ma Paul v. Ramsey, 20 How. 525; Jones v. McMasters, 8; Id. 
Fenn v. Holme, 21 How. 481; Varni v. Tesson, 1 Black, 314; Noonan v. 
Lee, 2 Black, 509; Thompson v. RailroadCos. 6 WaU. 134; Ins. Co. v. Weide, 
9 Wall. 677; Walker v. Dreville, 12 Wall. 440; Ex parte MeNeil, 13 Wall. 
236; Tyler v. Magwire, 17 Wall. 253; HornbucJcle v. Toombs, 18 Wall. 648; 
i^TMdtd V. Burrows, 91 U. S. 426; IndiaoïapoUs, etc., R. Co. v. /?o?-si, 93 U. S. 299; 
Neuocomb -v.Wôod, 97 U. S. 581; VanNorden v. Jfortow, 99 U. S. 378; Sm«A 
V. Railroad Ob. Id. 398; Ex parte Boyd, 105 U. S. 6i7; May er y. Foulk- 
rod, 4 Wash: C. G. 349; Baker v. Biddle; Bald. 394; fffer v. ffrefirgr, 4 McLean, 
202; Gordon v. ffobart, 2 Sumn. 401; iJ^/rci v. Badger, 1 Me AU. 443; iortrag- 
V. Bowner, Id. 360; Shv/ord v. Ca/w, 1 Abb. (U. S.) 302; iamar v. Dana, 10 
Blatchf. 34; Montejo v. Owew, 14 Blatchf. 324; Garden City Co. v. 8mith, 1 
Dill. 305; Weed Sewing-machine Co. v. Wicks, 3 Dill. 261 ; Hall v. Mining Co. 
1 Woods, 544; Benjamin v. Cavaroc,2 Woods, 168; Kimball v. Mobile Co, S 
Woods, 555; Butler v. Young, 1 Flippin, 276; Beardsley v. Littell, 6 Cent. 
Law J. 270; «Sag^e v. Touszky, Id. 7; Stora« Cutter Co. v. ,Sears, 9 Ped. Rbï, 
8; Benedict v. Williams, 11 Fed. Eep. 547; T'TeriAem v. Continental Ry. & 
T. Co. Id. 689; ?7. S. v. Traiw, 12 Fed. Bep. 852; SUam Stone Cutter Co. v. 
Jones, 13 Fed. Kep. 567. ' 

2. Consult on the spécial subject of thèse distinctions in relation to mat- 
ters of pleading and the removal of causes the foUowing cases : Gaines v. Relf, 
15 Pet. 9; Minor v. Tillotson, 2 How. 392; Randon v. Toby, 11 How. 493; 
Green v. Custard, 23 How. 484; Gridley v. Westbrook, Id. 503; Part- 
ridge v. Jws. Co. 15 WaU. 573; The Abhottsford, 98 U. S. 440; Barrow v. 
Hunton, 99 U. S. 80; Hurt v. Hollihgsworth, 100 U. S. 100; 17e«« v. Smith, 
101 U. 8. 264; Duncan v. ffep-aw, Id. 810; Jifkins v. Sweetzer, 102 U. S. 177; 
S'^wp V. Worthington, 104 U. S. 44, 50; Hewettv. Phelps, 105 U.S. 393, 396; 
T&vbcey v. Bowen, 1 Biss. 81; Akerly v. FiZas, 3 Biss. 332; Brownell v. ffor- 
dow, 1 McAU, 207,211; Clarkev. Protection Ins. Co. 1 Blatchf. 150; Charter 
Oak Ins. Co. v. 8tar Ins. Co. 6 Blatchf. 208; Fisk v. Union Paa. R. Co. 8 
Blatchf. 299; Bart v. McS:inney, 9 Blatchf. 359; Merchnnts' Nat. Bank v. 
Wheeler, 13 Blatchf. 218; S. C. 3 Cent. Law J. 13; Bills v. Railroad Co. 13 
Blatchf. 227; Oscanyan v. Winchester ArmsCo. 15 BMchf. 79,87; La. Mothe 
Manufg Co. v. Tube Works, Id. 435; Stevens v. Richardson. 20 Blatchf. 53; 
[S. C. 9 Fed. Rep. 191 ;J Ins. Co. v. Stanohfleld, 1 DiU. 424; Zinkeison v. 
Hvfsohmidt, 1 Cent. Law J. 144; Thorne v. Towanda Tanning Co. 15 Fed. 
Rep. 289. 

3. Consult, also, generally, the foUowing text-books : Dill. Kem. Causes, (2d 
Ed.) 40, 42, 45, 46, 47; Bump, Fed. Proc. 180, 209, 237; Thatcher, Pr. C. C. 
305-307, 309, 310; Spear, Fed. J. 473, 486, 521, 522, 747, 764. 



LEO V. UNION PAO. BY. CO. 

Léo V. Union Pac. Ey. Co. and another. 

[Circuit Court, S. D. New York. January 24, 1884.) 

1. DEMCSBER— iNaUFFICIENCY OF CoMPLAINT — CORPOBATB PoWBHS, ETC. 

The bill of the plaintiiï, a stockholder in the défendant corporation, brought 
to restrain the corporation from employing its assets in excess of its corporate 
powers, hdd insufflcient on demurrer on the ground that the allégations and 
statements should be more spécifie to show good cause for the relief sought. 

2. Corporations— In What Cape the Majority Rni,B8. 

In corporations wilhin the scope of the corporate authority the majority 
mies ; beyond this they hâve no right to go, and one may inslst upon stopping 
at the limits. 
5. Same. 

Those who hecome members of a corporation consent to the rule of the ma- 
jority within the powers of the corporation, but not beyond. As the right to 
restrain going beyond such powers dépends upon tlie want of consent, if the 
consent is given the right ceases. Therefore, when such restraint is sought, due 
diligence, in the proper direction, to prevent what is sought to be restrained, 
must be shown as a part of the title to relief. 

In Equity. 

George Zabriskie and John E. Burrill, for orator. 

John F. Dillon, for défendants. 

Wheblee, J. This cause has been before heard on a motion for 
a preliminary injunction. 17 Fed Rep. 273. It has now been heard 
on demurrer to the bill. The question then was whether the de- 
fendants should be restrained pending the litigation; it now is 
■whether there is anything in the bill which they ought to answer. 
The bill is brought by a stockholder to restrain the corporation from 
employing its assets in exoess of its corporate powers ; the other de- 
fendant is joined as président of the corporation for discovery merely, 
and no bad faith is alleged or charged. The prayer is that the cor- 
poration and its officers and agents be restrained, and for further re- 
lief. Any relief for the orator hère must be wholly préventive. He 
could not, and does not ask to, undo what has been done. The avails 
of it, if held by the corporation, can only be reached through divi- 
dends common to ail stockbolders ; if by others, only by proeeedings 
against those who hâve them. 

According to the bill, which is now to be taken as true, the cor- 
poration is made up of the Union Pacific Railroad Company, the 
Kansas Pacifie Eailway Company, and the Denver Pacifie Railway 
& Telegraph Company. The Union Pacific Railroad Company, be- 
fore the consolidation, having a definite line of road, exceeded its 
powers if what is now sought to be restrained is an excess, and in 
the same manner, by lending and advancing moneys to other rail- 
road companies to be used in the construction, maintenance, and 
opération of their roads, and entered into obligations to furnish fur- 
ther amounts, and received in payment of moneys furnished from 
time to time stocks and bonds of such roads. Since the consolida- 



284 FEDERAL BEFOBTEB. 

tion the same course has been pursued; stocks and bonds to whîch 
the Union Pacific Kailroad Company would hâve been entitled, liave 
been received by the défendant, and it has lent and advanced its 
moneys and crédit to the same and other organized railroad corijo- 
rations for the purpose of, and of aiding in, the construction, main- 
tenance, and opération of their roads. There is no description of 
the corporations so aided, except that the corporate names of 
some are stated without their source, vrhether from state or national 
authority, and some are stated to be unknown ; nor of their lines of 
road except as branch and Connecting roads. Nor is there any 
statement of the amount of such aid or of the payments therefor, 
except that it is stated as appearing from the report of the govern- 
ment auditor that the amount of stocks and bonds received from 
other roads was, by the. Union Pacific Eailroad Company, June 30, 
1878, $5,229,327.84; June 30, 1879, $7,534,243.91; by the défend- 
ant, June 30, 1880, $15,338,453.94, and that the orator is informed 
and believes that the défendant now holds of such bonds $23,749,- 
230.40, and of such stocks $29,462,046.98. The orator has at dif- 
férent times been a stockholder to a large amount in the défendant 
company. He aequired bis présent stock, 100 shares, November 17, 
1882 ; commenced to object to this course of the défendant the next 
day, and brought this suit Deeember 22, 1882. In the amended bill 
now under considération, it is alleged that at a gênerai meeting of 
the stockholders, held March 9, 1883, at which the holdersof 384,769 
shares were présent or represented, this course was unanimously ap- 
proved of. Whether the orator was présent at that meeting is not 
stated; neither is any effort by him with the stockholders, either 
separately or at any meeting, to induee them to change or desist from 
this course, set forth, or any attempt to stop it shown, except notifica- 
tions and protests to the officers and agents of the company. 

The orator could not, and does not claim to, hâve any right to relief 
on account of his former ownership of stock. Having parted with 
that and ail rights belonging to it, he gained this as a new acquisi- 
tion, and has such rights as appertain to him as the owner of it as he 
aequired it. There is no doubt, and no question is really made, but 
that a stockholder or partner in an enterprise has theright to prevent 
taking his interest into another and différent enterprise without his 
consent. In corporations within the scope of the corporate authority 
the majority rules ; beyond this they bave no right to go, and one 
may insist upon stopping at the limits. Colman v. Eastern Cos. Ry. 
Go. 10 Beav. 1 ; Salomons v. Laing, 12 Beav. 339; Bemany. Rvfford, 
4 Eng. Law & Eq. 106; Stevcns v. Rutland de B. R. Co. 29 Vt. 545. 
This right to stop the majority at the bounds of corporate power rests 
upon the control which every one has over his own property. Those 
who become members of a corporation, consent to the rule of the ma- 
jority within the powers of the corporation, but not beyond. As the 
right to restrain going beyond dépends upon the want of consent, if 



LEO ». UNION PAO. BY. 00. 283 

the consent is givon the right must cease. Therefore, when suoh re- 
straint is sought, due diligence, in the proper direction, to prevent 
what J8 sought to be restrained, must be shown as a part of the title 
to relief. Kent v. Jackson, 14 Beav. 367 ; Gregory v. Patchett, 33 Beav. 
595. The exercise of the rigbts of a stockholder to influence corporate 
action by vote and speech in corporate meetings, when opportunity 
was presented or could be had, would lie in the proper direction. Dntil 
such means should be exhausted or prevented, there would be no real 
oppression of the minority by the majority. Hawes y. Oakland, 104 
U. S. 460. The transactions of which the orator complains, and the 
continuance of which he is seeking to prevent, hâve been going on in 
the Union Pacific Eailroad Company since long before, and in the de- 
fendant Company ever since, the organization of the défendant Com- 
pany. As he had been a ■ stockholder before, and haa derived his 
knowledge of what was being done from the auditor's reports, open to 
ail stockholders at least, he must hâve known what had been and was 
being done in thèse respects when he purchased this stock and as- 
Bumed his présent status in the company. He does not allège that he 
was in anywise ignorant of thèse things. His vendor is not shown 
to hâve in ail this time objeeted, and must be taken to bave acqui- 
esced. He purchased this stock knowing that the company was en- 
gagea in the enterprises he seeks to stop, and by taking it he consen- 
ted to become a member of a corporation so engaged. Large outlays 
had been made, great liabilities had been ineurred, and embarrassing 
complications would necessarily follow, stopping them in the midst. 
It would seem to be highly inéquitable and unjust to allow such a 
small minority to step in and arbitrarily stop the great majority, 
acting in good faith, honestly even if mistakenly, and in strictness 
outside of their authority. If the company was about to under- 
take a new enterprise not involved with thèse which hâve been so long 
prosecuted, and outside of its corporate powers, such as building a 
new line of road or purchasing the stock of another line, so as to con- 
trol it, and thereby extend its lines beyond its charter, the case might 
be very différent. 

It does not distinctly appear that the transactions in question are 
outside of the powers of the corporation. The Kansas Pacific Eail- 
way Company was a Kansas corporation, with powers amply suffi- 
cient, under the laws of that state, to do within that state ail that is 
complained of as being done somewhere by the défendant. Comp. 
Laws Kan. § 4091. This corporation was Consolidated with thé 
others as it was, and as they were, and it is not easy to see any rea- 
son why the corporate powers of eaoh were not carried into the Con- 
solidated company. Coimty of Scotland v. Thomas, 94 U. S. 682, 
Not that the consolidated company has powers in ail the states and 
territories where it exists co-extensive with those of the Kansas Pacific 
in Kansas, but it may hâve in Kansas ail the powers which the Kansas 
Pacific had there. If it has, ail thèse transactions may be, so far as 



286 PBDEBAL BEPOBTEB. 

the bill shows, in that state, and within the powers authorized to be 
exercised there. The names of the corporations are given, but they 
are private corporations, although created for public purposes, and 
judicial notice cannot be taken of their location. Although the de- 
fendant is merely a railroad corporation, it must, from its nature and 
circumstances, hâve large implied powers, which are as well conferred 
as its expi-ess powers. Nat. Bank v. Graham, 100 U. S. 699. It is 
burdened with vast debts, which it was fuUy authoriyied to assume, 
falling due in such immense sums at a time that the ordinary reve- 
nues would be whoUy inadéquate to meet them. Large accumula- 
tions and investments muet be made long beforehand, involving great 
financial transactions. Opérations must be had whoUy foreign to the 
management of the railroads themselves, and pertaining much more 
to the business of banking than that of a carrier. Thèse opérations, 
if entered into for the purpose of carrying on a banking business,- 
would be whoUy outside of the corporate power ; but when done for 
the purpose of fulfiUing the financial duties of the corporation, must 
be clearly within them. The purchase of the stocks and bonds of 
other rajlroads might be for this legitimate purpose as well as the 
purchase' of government or other corporate securities. The orator 
bas not shown that the purchàses of stocks and bonds may not be of 
this proper clasa. 

Ail thèse statements and allégations are in very gênerai tenus. 
Excess of chartered powers, in progress or intended, is in no partic- 
ular pointed out. A decree according to the prayer of the bill would 
be scarcely, if any, more than a gênerai injunction against going 
outside of the charters. Something more spécifie, and so spécifie 
that the court can see that it is unwarranted by the law of the ex- 
istence of the corporation, and wrongful to the orator as a member 
of it, should be pointed out distinctly. The bill, as now considered, 
does not appear to be sufficient to require an answer. 

The demurrer is sustained, and the bill adjudged insufScient. 



Beeby and another. Assignée, etc., v. Sawyer and others. 
{Circuit Oourt, W. D. Pennsylvania. September 14, 1882.) 

1. Express akd Constructive Trusts— Pabol Aorbement respectino Land. 

' A paroi agreement bj' which one of several joint purchasers of land takea the 
title in trust for the others, imposes upon the grantee an express trust wliich 
does not fall within the meaning of a siatute of limitations tixing a time for the 
enforcement of constructive trusts. 

2. Limitation — Bankrtjpt Act — Adverse Interest. 

The claiise of the banlcrupt act requiring ail causes of action, "between an 
assignée in bankruptcy and a person claiming an adverse interest," to be pros- 
ecuted within two years, applies only wlien the interest has been actually ad- 
verse for two ycars; and tiie interest of a trustée, sd long as he acknowledgea 
the trust, is not adverse to that of bis cestui que trust. 



BERBY V. SAWÏBB. 287 

3. "WiTSTESS—CoMPETENCT— Action by ok against ExECtrroES— Paety to the 

Record. 

Section 858 of tbe Revised Statutes, making both parties in actions by or 
against executors, administratora, or guardians incompétent to testify as to 
certain transactions, does not disqualify a person interested in the controversy 
unless he is an actual party to tlie record. 

4. EqUITY PLBADINa — ResPONBIVB AliLEGATIONS — HOW FAB CONCLUSITE EVI- 

DENCE. 

The rule that responsive allégations in the answer to a bill in equity are con- 
clusive évidence in favor of the respondent unless overcomç by the testimony 
of two witnesses or their équivalent cannot be invoked wlien the answer is 
upon information and belief, or is discredited by circumstances. 

In Equity. 

Schoyer é McMurry, for complamants. 

Malcolm Hay and S. H. Geyer, for respondents. 

McKennan, J. This bill is filed by the complainants, as assign- 
ées in bankrnptcy of N. P. Sawyer, against Jane Frances Sawyer, 
in her own right, and as exeeutrixof the wiH of John H. Sawyer, and 
also against G. B. Seeley and Ormsby Phillips, as voluntary assignées 
of said John H, Sawyer. It allèges that N. P. Sawyer confessed 
jûdgments to a large amount in favor of John H. Sawyer, which are 
entered of record in Allegheny eounty, a large portion of which jûdg- 
ments were merely a security for advances and responsibilities to be 
thereafter made and assumed by said John H. Sawyer for the benefit 
of N. P. Sawyer, but which he did not make or assume ; and that 
certain valuable real estate, fuUy described in Exhibit G, was pur- 
chasedjointly by John H. Sawyer, N. P. Sawyer, and B. G. Sawyer, 
tbe title of which, for convenience of sale, was vested in John H. Saw- 
yer, who held said title in trust for himself and the said N. P. and B. 
G. Sawyer; and that the said John H. Sawyer, in his life-time, sold con- 
sidérable portions of said real estate and received the purchase money, 
but rendered no account thereof. And, therefore, praying that an 
account be taken of the proceeds of ail sales by said John H. Saw- 
yer in his life-time ; that any surplus due to said N. P. Sawyer af ter 
paying his true indebtedness to John H. Sawyer, be paid to the com- 
plainants; and that tbe undivided one-third of the said real estate 
remaining unsold be conveyed to the complainants. 

The answers of Jane P. Sawyer and Ormsby Phillips, upon in- 
formation and belief, deny that the jûdgments confessed by N. P. 
Sawyer to John H. Sawyer were given, as stated in the bill, for fu- 
ture advances and responsibilities, but aver that they were founded 
upon an actual indebtedness by N. P. to John H. Sawyer, at tbe time. 
And they also, upon information and belief, deny the fiduciary char- 
acter of the conveyances to John H. Sawyer of the real estate de- 
scribed. And they also aver that an act of assembly of the common- 
wealth of Pennsylvania, approved April 22, 1856, entitled, "An act 
for the greater certainty of title, and more secure enjoyment of real 
estate," provides, inter alia, "that no right of entry shall accrue or ac- 
tion be maintained to enforce any implied or resulting trust as to re- 



288 FEDERAL BEPORTEB. 

alty, but within five years after such trust accrued, with the right of 
entry, unless such trust shall hâve been acknowledged by writing to 
subsist by the party to be charged therewith within the said period;" 
and therefore aver that, as more than five years hâve elapsed since 
the alleged trust accrued, the complainants are not entitled to hâve 
it enforced. 

It is clear that the Pennaylvania statute opérâtes exclusively upon 
the class of trust which is within its terms. Resulting trusts alone 
are named, and hence they only are within its scope. They are such 
as are implied by opération of law, as where one buys land in the 
name of another, and pays the purchase money, the légal implication 
is that the grantee of the title holds it in trust for the person who 
paid the purchase money. They belong to a distinct class from ex- 
press trusts, which never rest in implication, but are the product of 
an express déclaration or agreement. That the latter may be created 
by paroi — as is now well settled — does not change their technical 
character or classification. The trust alleged in the bill isan express 
one, and therefore the respondents are not entitled to the beneât of 
the statutory limitation. 

The complainants were appointed assignées in bankruptcy of N. P. 
Sawyer on the twentieth of November, 1876; John H. Sawyer died 
in July, 1877 ; and this suit was brought in November, 1879. It is 
therefore insisted that more than two years elapsed after the com- 
plainants' right of action accrued, and that the suit is barred by sec- 
tion 5057 of the Eevised Statutes, (section 2 of the bankrupt act.) 
That section fixes the period of two years from the time when the 
cause of action accrued for the bringing of suits, at law or in equity, 
"between an assignée in bankruptcy and a person claiming an ad- 
verse interest touching any property or right of property transfér- 
able or vested in such assignée." A similar provision was contained 
in the bankrupt act of 184:1, and that was held not to apply to con- 
troversies touching real estate until after two years from the taking 
of adverse possession. Banksv.Ogden,2WaM.5S. knàm BaileyY. 
Glover, 21 Wall. 346, the limitation in the act of 1867 is held to ap- 
ply to ail judicial contests where the interests are adverse and hâve so 
existed for more than two years. And so, again, in Seymour v. Freer, 8 
Wall. 202, the court say : "When there is no disclaimer the statute has 
no application to an express trust, such as we bave found to exist in 
this case." Hère the court found a trust to hâve existed which is 
strikingly similar in its main feature to the trust set up in this case. 

If the averments of the bill as to the original existence of a trust 
are sustained by compétent and sufficient proof, the applicability of 
the limitation will then dépend upon whether, and at what time, 
there was a disclaimer of the trust by the trustée or his représenta- 
tives, or whether and when the interests of the parties became adverse. 
The respondents hâve not ofifered any évidence ; and there is nothing 
in tlie record to show that John H. Sawyer, at any time during his 



BEBBY V. SAWYEB. 289 

life, denied the trust, or that his assignées and personal représenta- 
tive assumed an attitude adverse to it until 1879, within a year be- 
fore the institution of this suit. It is true that John H. Sawyer held 
the légal title and made sales and conveyanees of parts of the trust 
property, and received the purchase money therefor. This was not, 
however, inconsistent with the trust, but was in entire harmony with, 
and in pursuance of, its alleged object and terms. More than this, 
it is in proof that N. P. Sawyer and B. C. Sawyer occupied parts of 
the trust property for some years during the life of John H. Sawyer 
without paying any rent to him, or any claim for it on his part. 
Under thèse circumstances, it is clear that an adverse relation touch- 
ing the alleged trust did not exist for two years between N. P. Saw- 
yer and John H. Sawyer or his représentatives ; and hence that the 
statutory limitation is inefïectually invoked. 

The testimony of N. P. Sawyer bas been taken and offered, and 
it is indispensible to the complainants. His competency as a wit- 
ness is objected to by the respondents. Although he is not a party 
to this suit, yet we think he has such an interest in its resuit as would 
disqualify him, unless he is rendered compétent by section 858 of the 
Eevised Statutes. That section, in the most comprehensive terms, 
removes ail disqualifications to testify by a party to an action, or by 
one interested in the issue tried; but it provides "that in actions by 
or against executors, administrators, orguardians, in which judgment 
may be rendered for or against them, neither party shall be allowed 
to testify against the other, as to any transaction with or statement 
by the testator, intestate, or ward, unless called to testify thereto by 
the opposite party, or required to testify thereto by the court. " Be- 
fore the passage of this act two classes of persons were incompétent 
to testify, viz., parties to the issue, and persons interested in but 
not parties to it. In the body of the section this disqualification is 
removed, without restriction, as to both classes. The proviso, how- 
ever, restricts the testimony of a "party" to the issue so asto exclude 
transactions with, or statements by, a deceased testator, intestate, or 
guardian, but does not impose any such limitation upon the compe- 
tency of a witness interested in but not a party to the issue. This 
is the literal import of the whole section, and, we think, accords with 
its spirit and reason. We must therefore overrule the objection to 
the déposition of N. P. Sawyer, and take the whole of it into consid- 
ération. That testimony is of great significance. It sustains every 
material allégation of the bill. It establishes the trust alleged, ex- 
plains its origin and nature, and states fuUy and clearly its objects 
and terms, and the reason of them, and what was done in pursuance 
of it. And it is materially reinforced by the testimony of Wade 
Hampton and Andrew Lyons, both of whom testify to acts and déc- 
larations of John H. Sawyer, as well as of N. P. and B. G. Sawyer, 
in his présence, in confirmation of the existence of a trust. No rea- 
son is apparent to us why this testimony should not be believed ; and 
v.l9.no.5— 19 



290 FEDESAIi BEPOBTSB. 

80 accepting it, we are brought to the conclusion that tlie title to the 
real estate described in the bill and exhibits was vested in John H. 
Sawyer for the joint and equal benefit of himself, N. P. Sawyer, and 
B. C. Sawyer, and that the unsold remainder of this real estate is 
held by bis successors, subjeet to this trust. 

But it is urged by the respondents' counsel that even if the évidence 
in support of the bill is to be taken as true, it is not sufiScient to en- 
title the complainants to a decree; and the familiar rule in equity is 
invoked that the responsive allégations in an answer are conclusive 
évidence in favor of the respondent, unless they are overcome by the 
testimony of two witnesses, or that of one and proof of circumstances 
équivalent to the testimony of a second witness. This is the gên- 
erai rule when the négative averments in the answer are positive and 
are founded upon the knowledge of the respondent. The reason of 
it is, as stated by Ghief Justice Marshall in Clark' s Ex'rs v. Van Riems- 
dyli, 9 Cranch, 160, that "the plaintiff calls upon the défendant to 
answer an allégation he makes, and thereby admits the answer to be 
évidence. If it is testimony, it is equal to the testimony ot any other 
witness; and as the plaintiff cannot prevail if the balance of proof be 
not in bis favor, he must hâve circumstances in addition to his sin- 
gle witness in order to turn the balance." And he affirms that the 
weight to be given to the answer is affected by the same tests whieh 
are applicable to a déposition, as, for instance, whether the respondent 
apeaks from belief or knowledge. Both are only évidence, and must 
be weighed in the same scales. This qualification of the weight to be 
given to an answer upon information and belief is also strongly stated 
in the note to Mr. Bispham's Adam's Equity, on page 693, on the 
authority of numerous American cases. And in the note to section 
849a, Story, Eq. PL (9th Ed.) it is thus stated: "An answer upon 
oath is not évidence for the défendant, which must be overcome by 
two witnesses, • * * (5) when the answer itself shows, or it is 
apparent from the defendant's situation or condition, that though the 
answer is positive, he swears to matters of which he could not bave 
Personal knowledge." In the same note it is further said, upon sev- 
eral authorities, that, where an answer upon oath is discredited as to 
one point, its effect as évidence, as to other points, is impaired or 
destroyed, according to the circumstances of the case. 

The alleged trust property consisted of two parcels, one known as 
i;he Hitchcock property, purchased in the latter part of 1865 ; the 
other as the O'Hara property, which. was purchased not long after 
the Hitchcock. As to the Hitchcock property, the largest require- 
ment of the rule is f uUy met by the proof s presented by the com- 
plainants. The testimony of three witnesses as to the déclara- 
tions and acts of John H. Sawyer touching the negotiation for its 
purchase, the contract for it, and the sales of a large part of it, 
clearly impress upon his title the fiduciary character contended foi 
by the complainants. The proof in relation to the O'Hara property 



WEST POETLAND H0ME8TEAD ASS'N U. LAWNSDALH. 291' 

îs somewhat less plenâry. It consists ehiefly of the testimony of N. 
P. Sawyer. But considering that his testimony as to the trust agree- 
ment is eorroborated by the testimony of Wade Hampton and An- 
drew Lyons touching the Hitchcock property; that the négative aver- 
ments of the answers do not rest upon the personal knowledge of the 
respondents; that the answers are materially discredited upon one 
point at least by the complainaîits' proofs; and that N. P. Saiwyer 
was in the occupancy and enjoyment of the O'Hara property for 
nearly 10 years without payment of or claim for rent,— we are of 
opinion that the weight of the answers as évidence is greatly im- 
paired, and that the balance of proof is in favor of the complainanta. 
Upon the whole case, we think the relief prayed for ought to be 
granted against the respondents, except Seeley, and a decree to that 
efifect will accordingly be drawn. 

AcHESoN, J. I sat with Judge McKennan at the hearing of this 
case, and hâve reached the sarae conclusions announced by him. I 
concur unreservedly in his opinion. 



West Pobtland Homestbad Ass'n v. Lawnsdalb, Assignée. 
(Distriot Court, D. Oregon. Febniary 21, 1884.) 

1. OoNVEYANCE— Considération for. 

A conveyance under seal is prima facie évidence of a sufBcient considération, 
and a mère stranger to the land cannot question it. 

2. Case m Judgment. 

G. and C. were tenants incommon of a tract of land which was surveyed and 
platted as Carter' s addition to Portland, and then partitioned between the ten- 
ants in common by mutual conveyances, the one to C. containing a sraall park 
for the purpose of equalizing the partition, described thcrein as blocli 67, and 
afterwards changed said survey so as to materially diminish said park; and at 
the same time G. surveyed a tract of land adjoining the tract held in common, 
into lots and blocka, and together with his co-tenants platted the two tracts a? 
one Carter's addition, and duly acknowledged and recorded the same, with a 
block numbered 67 in the G. tract, and the small park aforesaid, not numbered. 
Held, that the conveyance to C. of the park as block 67 did not affect the block 
67 afterwards laid otï in the G. tract, and that the assignée in bankruptcy of 0. 
had no right, interest, or equity therein, and should be enjoined at the suit ol 
G. 's granlee from selling the same as the property of C. and thereby casting g 
cloud on such grantee's title thereto. 

Suit to Enjoin a Sale of Eeal Property. 

C. P. Heald, for plaintiff. 

George H. Dwrham and George H. Williams, for défendant. 

Deady, J, This case was before this court on a plea of the statute 
of limitations (section .5057, Rev. St.) to the original bill, filed on 
March 27, 1883, when the former was held good, (17 Fed. Eep. 205;) 
and also on a demurrer to an amended bill filed July 24, 1883, which 



292 TEDEBAL EEPOETER. ' 

was overruled. Id. 614. The case bas since been heard on such 
amended bill, the answer thereto, and the replication, exhibits and 
testimony, and the only question arising thereon is this : was the 
présent block 67, in Oarter's a,ddition to Portland, conveyed to 
Charles M. Carter on September 6, 1871, by the partition deed to 
him of L. P. and Elizabeth Grover and others, of that date? If it 
■was, this suit cannot be maintainedj even if it was included in said 
deed by mistake, because the right to relief therefrom is barred by 
section 5057 of the Revised Statutes. But if it was not, then it is 
equally clear that the défendant, as the assignée in bankruptcy of 
said Carter, bas no right or interest in the property, and may be re- 
strained from selling it as such, and thereby casting a cloud on the 
title of the plaintiff thereto. This is a question of fact; and without 
discussing the évidence in détail it is sufficient to say that it is clear 
and convincing that this block 67 was not in existence — had not 
been laid off — when this deed was executed, and was not afïected by 
it. Neither did the parties to this conveyance contemplate or under- 
stand that the title to this block was in any way involved in the par- 
tition of whieh it forms a part. For although the description in the 
conveyance — block 67, in Carter's addition to Portland — so far indi- 
cates this block as the property intended, as to make a prima facie 
case of identity, yet the plaintiff is entitled to show, and has shown 
beyond a doubt, that this is a mère coincidence, and that whatever 
property was intended to be conveyed by the description of block 67, 
in Carter's addition, it was not and could not be this block 67. 

Whenever, for any cause outside of a deed, there arises a doubt in 
the application of the descriptive part thereof, évidence dehors the 
writing may be resorted to for the purpose of identifying the subject 
of the instrument and the understanding or intent in this respect of 
the parties thereto'. And it matters not that it may not appear what 
property was intended to be conveyed by the description of block 67 
in this deed, so long as it does not appear that it is the block in dis- 
pute. But there is very little room for doubt or controversy on the 
subject. When the parties had selected the blocks in the common 
tracts as laid out, up to and including 65, in the fîrst survey, it waa 
lound that Mr. J. S. Smith and Charles M. Carter, had less in value, 
according to the agreed priées, than the other two ; and so to equalize 
the partition, Smith took a small park and numbered it 66, while 
Carter took another one lying between Summit and East drives, and 
marked it 67, and the deeds to them were made out accordingly. 
The plat of this survey was photographed before this partition, and 
the original was burned in the great fire of 1872. The photographie 
copy is hère, but without the numbers 66 and 67 on it. Soon after 
this survey and partition of the common tract, the ground, which was 
uneven and steep and oovered with timber and brush, was burned 
over, and showed such irregularities of conformation as induced the 
parties to change the survey in some respects, whereby the park al- 



WEST PORTLAND HOMESTEAD ASS'n V. LAWNSDALB. 293 

lotted and conveyed to Garter, as block 67, -was materially reduced in 
size, and on this account and from its situation regarded as almost 
worthless. 

In platting the subséquent survey of the Grever tract the second 
survey of the common tract was included therein, and the whole ac- 
knowledged and recorded by ail the parties thereto on November 4, 
1871, as the plat of Carter's addition. In numbering the bloeks on 
the Grover tract, the draughtsman, who was the same person in both 
cases, commenced at 66, the highest number on the original draught of 
the plat of the common tract being 65. Before the acknowledgment, 
however, attention was called to the fact that Smith had been allotted 
a park in that tract and received a conveyance of it from his co-ten- 
ants as block ^Q, and thereupon the block of that number on the 
Grover tract was numbered 66|-, but the park allotted and conveyed 
to Carter as block 67 does not appear to hâve attracted the same at- 
tention, and the plat was acknowledged and recorded with only the 
one block numbered 67 on it — the one in the Grover tract. The 
probability îs that, being comparatively worthless, it was overlooked. 
It was never listed for taxation; and Mr. Carter testifies that he 
owned the block adjoining it, and he preferred and so regarded it as 
public ground or street. 

The theory of the défendant is that, although this park in the com- 
mon tract was allotted and conveyed to Carter as block 67, yet when 
upon the resurvey this was nearly obliterated, that the parties— and 
particularly Grover and Carter — came to an understanding that there 
should be a block 67 laid ofï in the Grover part of the new Carter's 
addition, which should stand for and represent the block of that num- 
ber and description in his deed of September 6th. But the parties to 
the transaction — Grover, Smith, and Carter — ail testify positively that 
there never was any such agreement or understanding, or even any 
intention, that Carter should bave block 67 in the Grover tract on "any 
account or for any reason ; and there is nothing in the case but sur- 
mise and conjecture to the contrary. About this time Carter wrote 
his name on the recorded plat of Carter's addition across ail the 
bloeks elaimed by him therein, and this block 67 is not among them. 
If he then understood that it was his, why did he omit to mark it ? 
The omission to do so, under the circumstances, is a deliberate ad- 
mission that it was not his. He never listed it for taxation or paid 
any taxes on it. Lists of the property on which he paid taxes for 
several years after 1871, indorsed on the tax receipts, including sun- 
dry bloeks in Carter's addition, are produced in court, and this block 
does not appear in any of them. Carter was one of the corporators 
of the plaintiff, his name appearing signed to the articles on July 27, 
1875, and as such he took the conveyance of this block from the 
grantors of the plaintifï. This was another deliberate admission that 
the property was not his, but of the grantors of the plaintiff. And 
ail thèse admissions were made long prior to the bankruptcy and the 



291 fEDEBili BEPOBIEB. 

xise of this controversy, and could not, so far as appears, hâve been 
made coUectively or for any ulterior purpose whatever. And if this 
Burmise or conjecture is even admitted to be a fact, it is not appar- 
ent how this verbal understanding between Grover and Carter eould 
hâve the effeet to convey any land of the former to the latter, let 
alone that of his wife's. Nor was there any reason in right or jus- 
tice for 6uch an understanding or agreement between the parties. If 
the partition of the common tract was thought to bave resulted un- 
equally as to Carter, by reason of the contraction of the park allotted 
to him as block 67, Mr. Grover was under no more obligation to 
make up the deficiency than his two co-tenants, who had received an 
equal share with himself . ïhe assumption that he would voluntarily 
undertake to make this deiiciency good, and apparently more than 
good, out of his own or his wife's property, is unreasonable and in- 
credible. 

Nor is there anyground onwhich the plaintiff and its grantors are 
estopped to assert their title to this block as against Carter's assignée 
in bankruptcy. In the first place, there is no reason to believe that 
any of Carter's creditors ever gave him crédit on the strength of the 
ownership of this block. In those days it was an unoccupied, out-of- 
the-way pièce of property and of comparatively small value, — a mère 
drop in the bucket compared with thé value of his estate and the vol- 
ume of his financial transactions. He neverwas in possession of it; 
never laid any olaim to it, or exercised any acts of ownership over it. 
There was no intention to deceive any one by means of the transac- 
tion, which occurred seven years before the bankruptcy, nor did it 
involve any such gross culpable négligence on the part of the plain- 
tiflF's grantors as the law considers équivalent to such intention; and 
more than ail this, if any creditor ever was ied to believe, from the 
record of the deed of September 6th to him, that the bankrupt ever 
owned a block numbered 67, in a Carter's addition to Portland, he 
would also see that it did not purport to be such a blook according to 
the recorded plat of said addition," and he might also see from the 
record thereof that such plat was made and acknowledged quite two 
months after the date of such deed; and thereby he would be in- 
formed, or hâve good reason to believe, that such block must be num- 
ber 67 on some other and prior, but unrecorded, plat of some other 
attempted Carter's addition. 

It is also claimed by counsel for the défendant that the plaintiff is 
not a purchaser for a valuable considération, and therefore cannot 
main tain this suit. But how that can be material in this contro- 
versy between the plaintiff, who appears to hâve the légal title and a 
stranger to the property, who does not appearto hâve any right, in- 
terest, or even equity in the premises, is not apparent. But the claim 
is not even sustained by the évidence. The eonveyance from Grover 
and wife to the plaintiff, on August 11, 1875, purports to hâve been 
made in "considération of the sum of $30,000 to them paid. The 



BBADLEY V, KROPT. 

conveyance is under seal, and is prima facie évidence of the truth of 
this récital, or at least that it was executed for a valuable considéra- 
tion. Code Civil Proc. § 743. And there is not a particle of évi- 
dence in the case to the contrary. The most that can be said is that 
it may be surmised from the évidence and the nature of the transac- 
tion that the formation of the plaintif and the conveyance of this 
property to it was merely a means of putting it on the market, and 
that the only considération which the grantors actually received from 
the conveyance was in the stock of the corporation. Bat admitting 
this to be a fact, the conveyance was nevertheless made upon a val- 
uable considération, the stock of the corporation standing for the 
property and having an equal value with it. 

The plaintif is clearly entitled to the relief, and there must be a 
deeree for an injunction restraining the défendant, as prayed in the 
amended bill, and for the costs, and it is so ordered. 



Bbadlet and others v. Kroft and another, Défendants, and William 
J. CowEN, Garnishee Défendant. 

{Circuit Court, W. D, Wisconain. December Term, 1883.) 

1. VOLTTNTABT AsSIGNMBNT — StATUTB OP W18CON8IN — PhOOF OP ClAM aPTBB 

THE Expiration op Three Months; 

The statutes of Wisconsin require ail creditors of one who has made a vol- 
untary assignment to filé their claims with the assignée within three months 
after his appointment, upon pain of being debarred from participation in any 
dividends made after the expiration of the three months, and before their 
claims are actually filed ; hdd, that there is nothing in the statute which pre- 
vents a créditer, -who has failed to file his claim within three months, from 
flling and proving it afterwards and taking the beneflt of the law. 
3. BaMK— TjNLAWFDIi Pbbferbncb. 

Accordingly, where a voluntary assignment of partnership property was 
made in trust for the payment of ail partnership debls that should be proved 
" as provided by the statute," and afterwards in trust for the payment of indi- 
vidual debts, Mld that the assignment contained no unlawful préférence, such 
as to debar from their rights the creditors of the partnership who did not file 
their claims within three months. 
3. Action on Demand not yet Due— Statcttb op "Wisconsin — Pkbbequisitbs 
— Bond. 

The statute of Wisconsin, allowing an action to be maintained on a de- 
mand not yet due upon the filing of a bond conditioned in three tlmes the 
amount of the claim, must be strictly complied with. The bond is a prerequi- 
site to the right of action, and if it is defective in the flrst instance the fault 
cannot be afterwards healed by the substitution of a regular bond. 

Décision of Motion for Judgments against défendants on the an- 
swer, and against garnishee défendant. 

Tenney é Bashford, for plaintifs. 

L. M. Vilas, for défendants and garnishee. 

BuNN, J. This action is brought by David Bradley & Ce, a cor- 
poration existing under the laws of Minnesota, and a citizen of Min- 



296 FEDKRAIi KBPOBÏEB. 

nesofa, against the défendants, wLo are citizens of Wisconsin, upon 
certain promissory notes not due ; and an attacbment accompanying 
the summons was igsued against défendants' property, under the 
provisions of chapter 233 of the General Laws of Wisconsin for the 
year 1880, and garnishee proceedings commenced against William 
J. Cowen, who, it is claimed, bas property in his hands belonging.to 
the défendants, and liable for their debts. The garnishee answers, 
denying ail liability, or that he bas any property in his hands belong- 
ing to the défendants. He also sets up faots showing that previous 
to the commencement of this action on November 14, 1883, to-wit, 
on November 5, 1883, the défendants, who were partners doing busi- 
ness at Menomonee, in Dunn county, under the firm name of Kroft 
& Severaon, made a gênerai assignment of ail their stock and effects 
to the garnishee défendant in trust and for the benefit of their cred- 
itors, under the insolvent laws of Wisconsin; and that the said 
garnishee holds the property which it is sought by the garnishee 
proceedings to reach, under such assignment. The plaintiff moves 
for judgment a,gain8t the garnishee upon his answer, and attacks tho 
validity of the assignment. The question is, whether the assignment 
is valid under the laws of Wisconsin? If it is, then the motion must 
be denied. 

The principal objections urged against the assignment are: (1) That 
it contains a préférence in favor of creditors, which the statute for- 
bids; (2) that it is conditional and does not appropriate the prop- 
erty of the assignors absolutely to the payment of their debts. If 
the assignment is justly obnoxious to thèse objections, or to either of 
them, it cannot be maintained. 

By chapter 349, Laws 1883, § 1, it is provided that "any and ail 
assignments hereafter made for the benefit of creditors, which shall 
contain or give any préférences to one créditer over another créditer, 
except for the wages of laborers, servants, and employés earned within 
six months prier thereto, shall be void." 

The assignment is somewhat voluminous, and, in order to a proper 
understanding and construction of it, it is necessary that ail the pro- 
visions should be considered together. The substance of those ma- 
terial to the inquiry is as foUows : 

The assignment recites that whereas the said assignors are in- 
debted to divers persons in divers sums, which, by reason of difficui- 
ties and misfortunes, they hâve become unable to pay, and they being 
desirous of providing for the payment thereof by an assignment of 
their property and effects for that purpose, not exempt from exécu- 
tion, in considération of the premises, etc., they do assign, convey, 
and set over to the assignée ail their real estate and personal prop- 
erty, whether held by them as partners or individuals, except such as 
is exempt from exécution; to hâve and to hold the same in trust 
that the assignée shall take possession of the partnership property, 
and, with ail convenient diligence, sell and convert the same into 



BRADLEY V. KEOFT. 297 

money, at public or private sale, as may be deemed for the best in- 
terest of the creditors, collect ail the debts, and, out of the proceeds 
of sueh sales and collections, make such payaient or payments to the 
partnership creditors, -pro rata, and without préférence, except as to 
laborers and servants, as is provided by law, subject to the orders 
and directions of the circuit court of said county, or the judge thereof, 
as provided by law ; and that if, af ter the payment of ail costs, and 
ail partnership debts in fuU, as hâve been proved against them as 
such partnership or firm, as provided in chapter 80 of the Eevised 
âtatutes of Wisconsin, and the several acts amendatory thereof, any 
portion of such proceeds remain in the hands of such assignée, he 
shall pay and discharge ail the private and individual debts of the as- 
signors, or either of them, whether due or to grow due, provided the 
respective amounts of the individual debts of each does not exceed 
bis portion, being one-half thereof of the surplus that may remain, 
after paying ail of the said partnership debts, and, if it should, then 
bis interest in such surplus to be divided, pro rata, among his indi- 
vidual creditors in proportion to their respective demands, which shall 
bave been proved and filed as required by said chapter 80, Eev. St., 
and amendatory acts. There is a like provision in regard to the sepa- 
rate property of the individual partners, assigning it (ail that is not 
exempt) to the assignée, without préférence, for the benefit of (1) the 
private and individual creditors that hâve proved their claims, and (2) 
when they are satisfied, then to their partnership creditors, sbare and 
share alike, who shall hâve proved their claims, as before provided. 
Then foUows a provision that "if, after payment in full, as aforesaid, 
there should remain in the hands or possession of the assignée, in 
trust, any portion of the proceeds of said sale and collections of said 
partnership property, or of said individual property, or of both, he 
shall return, reassign, and deliver the same to the assignors, accord- 
ing to their several rights." 

The foregoing is a condensed statement of the provisions bearing 
upon the question of a préférence in favor of creditors, and also upon 
the question of whether the assignment is conditional or absolute, 
thèse objections both turning upon the same question of construction. 

The question is as to the proper construction to be plaeed upon 
them, and whether the effect of the provisions, taken as a whole, is 
to prefer one creditor to another, or to make the assignment condi- 
tional instead of absolute for the benefit of creditors. There is no 
claim that the assignment, in terme, prefers any creditor or creditors 
by name, over others. But the plaintiffs' contention is that the as- 
signment only provides for the payment of such creditors as shall 
prove their claims within three months from the time of publication 
of notice to them by the assignée; and that the creditors who do not 
file affidavits of their claims within that time can not be paid at ail 
under the assignment, but the property, after that, is to be returned 
to the assignée. And if this be the proper meaning of the assign- 



298 FEDERAL .EEPOBTEB. 

ment, I think the contention must be sustained. But after a careîul 
considération of ail its provisions, and in the light of the statute, I 
must gay this seems to me a rather straitened construction, and 
that I find no such meaning in the assignment. The intention to be 
gathered from the whole instrument would clearly seem to be to pro- 
vide for the payment of ail who are entitled to be paid under the 
statute, share and share alike, Tvhether partnership or individual cred- 
itors, and equitably accordiug to their respective rights, as against 
the partnership and individnal effects, and whether the claims are 
proved within three months or afterwards, under the statute, except as 
to such préférence as the statute itself gives to those vrho prove their 
claims within three months. But to judge properly of the weight to 
be given the objection it will be necessary to refer to some provisions 
of the statute. 

Section 1693, ohapter 80, of the Eevised Statutes, provides that "the 
circuit court, or the judge thereof, in vacation, shall hâve supervision 
of the proceedings in ail voluntary assignments made under the pro- 
visions of this chapter, and may make ail necessary orders for the 
exécution of the same." 

Section 1698: "Within twelve days after the exécution of the as- 
signment the assignée shall give notice of the making thereof, and 
of his post-office address; and that every creditor of such assignor is 
required to file, within three months, with such assignée, or the 
clerk of the circuit court, naming him and his post-office address, on 
pain of being debarred a dividend, an affidavit setting forth hisname, 
résidence, and post-office address, the nature, considération, and 
amount of his debt claimed by him, over and above ail oiïséts." Then 
the statute provides for a publication of the notice, and mailing a copy 
to eaoh creditor. 

Section 1699, among other things, provides that the assignée, after 
the expiration of three months, shall file with the clerk of the court 
proof of the publication, and a list of the creditors served, and also a 
list of the creditors who hâve filed an affidavit of their claim. 

Section 1700 provides that "every creditor of the assignée [as- 
signor] wbo shall not file such an affidavit of his claim within the 
time limited, as aforesaid, shall not participate in any dividend made 
before his claim is filed. Debts to become due, as well as debts due 
may, be proved," a rebate of interest being allowed, etc. 

Section 1701 provides that the assignée shall, within six months 
after his appointment or within such further time as the circuit judge 
or court shall allow, file in the circuit court a report setting forth a 
full statement of the property received, together with the names and 
résidences of the creditors, the dividends made, and a full account of 
the reoeipts and disbursements. 

The plaintiff oontends that there is no provision in the law for a 
creditor to prove his claim after three months bas expired, although 
he may file it and be entitled to payment; and that the effect of the 



BEADLEY V. KBOFT, 

assignment is to provide only for the paymeût of thdse ereditors who 
file proof by affidavit of their claima within the tliree months. But 
if this be bo it must be by inference only, because there is no sueh 
provision expressed in the assignment. There is an express provision 
that out of the prooeeds of sales and collections the assignée shall 
make payment to the creditors, pro rata, and without préférence, ex- 
cept as to laborers and servants, as the law provides, aubject to the 
order and direction of the circuit court or the judge thereof. 

It is true, as before seen, that the assignaient provides that if after 
payment of ail costs and ail debts in full, as bave been proved agaiust 
the assignors, as provided by said chapter 80 and the several aets 
amendatory, that if anything remain, it shall be returned to them; 
but this is not équivalent to a provision that none shall be paid who 
do not file proof of claim within three months. On the contrary, it 
appears the provisions for payment in the assignment are as broad 
as the provisions of the statute, and that any one who is entitled to 
file or prove his claim within the law is also entitled to payment un- 
der the assignment. The clear inference from the statute is that no 
absolute limit is placed upon the time when claims must be filed or 
proved. There is an inducement held out to such as file them within 
three months. But, except that other creditors not so filing the affi- 
davit within that time are barred from sharing in dividende made 
previouB to the filing of their claims, their right to file and prove théir 
claims after three months bas expired is just as olear under thè law 
as is that of the more diligent class. 

It is said there is no provision in the law for proving claims, though 
there may be for filing them, after the expiration of the three months. 
But the gênerai provision, that debts to become due, as well as debts 
due, may be "proved," applies just as well to those "filed" after three 
months as those "proved" before, by the filing of an aflSdavit. The 
inference is irrésistible that a creditor may both file and prove his 
claim after the time limited, and the only penalty for not proving before 
is that they are not entitled to previous dividenda. It is clearly con- 
templated by section 1701 that the settlement of an estate under the 
act may require six months, or even longer, in the distribution, and 
under the gênerai control and supervision of the circuit court. And 
the provision, that "every creditor who should not file such affidavit 
of his claim within the time limited, shall not participate in any divi- 
dend made before his claim is filed," contains the clear implication 
that be is entitled by proving up his claim afterwards, to participate 
in dividends made subsequently. And if he is entitled under the law 
to prove his claim and participate in dividends, he is also so entitled 
by the clear and positive provisions of the assignment, It will hâve 
been observed that the circuit court bas gênerai control and supervis- 
ion of the estate and proceedings undet the assignment; and F eee 
nothing in the provisions of the assignment at ail inconsistent with 



300 FEDEBAL BËPOBTEB. 

a full and fait distribution of ail the property and effects of the as- 
signors, aooording to law. 

The conclusion I hâve reaohed is that the assignment is valid in 
law, and that the answer of the assignée, as garnishee, sets up a good 
défense. The motion for judgment will therefore be denied. 

I am also of opinion that the answer of the défendants Kroft & 
Severson sets up a good plea in abatement, and that the motion for 
judgment against thera must be denied. 

The action is upon promissory notes not due at the time of the 
commencement of the action. 

Chapter 233, Laws 1880, provides that "an action may be main- 
tained, and a writ of attachment issued, on a demand not yet due, 
* * * and the same proceedings in the action shall be had, and 
the same affidavit shall be required, as in actions upon matured de- 
manda, except that the affidavit shall state that the debt is to become 
due : provided that the undertaking * » * shall be conditional 
in three times the amount demanded." 

The action was commenced on November 14, 1883, by the issuing 
and service of a summons accompained by an attachment and under- 
taking, but the undertaking was not in three times the amount de- 
manded. On November 17th a new undertaking was executed and 
served, such as the law required in such cases, but no new summons or 
attachment was issued, and no new service had. The amount of the 
debt demanded was $603.56. The original undertaking aocompany- 
ing the summons or attachment was for $250. The undertaking 
executed on November 17th was for $2,000. It is claimed by plaintiffs 
that they had a right to give that new undertaking, and that the giving 
of it cured the defect and made the service of the summons and attach- 
ment good from that time. But I am unable to concur in this view- 
The proceeding is spécial, and I think ail the conditions of the statute 
should be complied with in order to uphold it. It was so held by the 
suprême court of Wisconsin in Gowan v. Hanson, 55 Wis. 341, [S. G. 
13 N. W. Eep. 238,] and I fuUy concur in the construction therein 
given to this statute. The court there say : 

"To our minds it is perfectly clear that the statute only authorizes the com- 
mencement of an action on a debt not due, for the purpose of an attachment, 
on condition that the requisite affidavit is made, and tlie proper undertaking 
executed and delivered. The giving of an undertaliing for three times the 
amount demanded is as essential to the right to maintain the action as the 
making ol' the affidavit. Both things are abâolntely necessary and requisite, 
when the debt is not due, and the omission of either is fatal to the action. 
This is the plain meaning of the statute; any other construction would do 
violence to the language." 

The exécution and service of an undertaking after the suit was be- 
gun could not relate back so as either to give the plaintifE a cause of 
action, as upon a demand already due, or to bring him within the 
provisions of the law for maintaining an action upon a contract not 



BANK OF THE METROPOLIS V. FIRST NAT. BANK OP JERSEY OITY. 301 

due when the suit was commenced. This is the real difficulty with 
the plaintiâ's case. It is not that there is a mère irregularity that 
may be cured by amendment or by a gênerai appearance. The sum- 
mons and attachaient proceedings were regular in form, but the 
plaintiff had no cause of action, although he held the défendants' con- 
tract not due, and of which there had been no breach. A cause of 
action arises on a contract not from the date, but from the time of 
the breach. By common and universal law no action can be main- 
tained until the contract is broken. By the laws of Wisoonsin an 
action may be maintained so soon as the contract is delivered, and 
before any breach, but only upon certain précèdent conditions, whioh 
were not observed in this case. 

The action when begun was liable to theplea in abatement, which 
was afterwards put in, that the debt was not due, and the service of 
the new undertaking was nol the commencement of another suit, 
and could not debar the défendant from bis plea. The plaintiff, if 
he wished to avail himself of this extraordinary statute, should hâve 
begun his suit anew, and complied in ail respects with its conditions. 
Nor was the defect waived by a gênerai appearance. The case is in 
no way likened to that of a merely irregular or détective service, 
where the party défendant, in order to take advantage of the irregu- 
larity, must appear specially and move to vacate, and where a gênerai 
appearance wiil be a waiver. Hère the summons, attaehment, and 
service are perfectly regular in form, and theaffidavit for the attaeh- 
ment gives no clue to the fact that the debt is not due, but, on the 
contrary, states that it is due upon express contract. The real diffi- 
culty is that the plaintiff bas begun his action prematurely ; in other 
words, that he had no cause of action at the time of the commence- 
ment of the suit. 

The course taken by the défendant was the proper course — to ap- 
pear in the action and set up the faets by plea in abatement. I 
think his plea a good one, and the motion for judgment thâreoû is 
denied. 



Bank of the Metbopolis v. First Nat. Bank of Jersey City. 

{Circuit Court, S. D. Nm York. Febraary 8, 1884.) 

X. NEooTiABïiB Paper — Qualified Indorsement — NoTicœ. 

An indorsement upon negotiable paper " For collection ; pày to the order of 
A. B.," is notice to ail purchasers that the indorser is entitled to the proceeds. 
2. MoNET Had ajjd Rkcbived— Pbioritt. 

An action for money had and reoeived lies against anyone wûo has mpney in 
his hands which he is not entitled to hold as against thê plaintiff; andwaut of 
priority between the parties is no obstacle to the action. 

At Law. 



302 . FEDERAL BEFOBTEB. 

Francis ScheU, for plaintiff. 

Marsh, Wilson é WaUis, for défendant. 

Walla.ce, J. The plaintiff sues to recover the amount of certain 
cheoks of whioh it was the holder and owner, and which came to the 
defendant's hands and were collected by its sub-agent under the fol- 
lowing circumstanoes : The plaintiff sent the ehecks to the Mecbanics' 
National Bank of Newark, for collection, with the qualified indorse- 
ment, "For collection; pay to the order of 0. L. Baldwin, cashier," 
Baldwin being the cashier of that bank. The Mechanics' National 
Bank of Newark sent the ehecks for collection to the défendant, pursu- 
ant to an existing arrangement between them by which each sent to the 
other commercial paper for collection, it being understood that the pro- 
ceeds were not to be specifically returned, but were to be credited to 
the sending bank by the receiviug bank, and enter into the gênerai 
account between them, consisting of silch collections and other items 
of account, and offset any indebtedness of the sending bank to the 
receiving bank. After the défendant received the ehecks in question, 
the Mechanics' National Bank of Newark became insolvent, and sus- 
pended payment, being indebted to the. défendant under the state of 
the accounts between them in a considérable sum. 

Upon thèse faots it is clear that the relations between the de- 
fendant and the Newark bank in respect to paper received by the 
former from the latter for collection were those of debtor and 
créditer, and not merely of agent and principal, (Morse, Banks, 52;) 
and the défendant, having received the paper with the right to ap- 
propriate its proceeds upon gênerai account as a crédit to offset 
or apply upon any indebtedness existing or to accrue from the New- 
ark bank growing out of the transactions between the two banks, 
was a holder for value. Since the décision in Swift v. Tyson, 16 
Pet. 1, it has been the recognizéd doctrine of the fédéral courts 
that one who acquires negotiable paper in payment or as seeurity 
for a pfe-existing indebtedness is a holder for value, (Nat. Bank 
of the lîepublic v. Brooklyn City, etc., R. Co. 14 Blatchf . 242; affirmed, 
102 U. S. 14;) and if the défendant had been jnstified in assum- 
ing that such paper was the property of the Newark bank, it would 
hâve been entitled to a lien upon it for a balance of account, no 
matter who was the real owner of the paper. Bank of Metropolis 
V. New England Bank, 1 How. 234. But the ehecks bore the indorse- 
ment of the plaintiff in a restricted form, signifying that the plaintiff 
had never parted with its title to them. In the terse statement of 
GiBSON, G. J., "a negotiable bill or note is a courier without luggage; 
a mémorandum to control it, though indorsed upon it, would be in- 
corporated with it, and destroy it." Overton v. Tyler, 3 Pa. St. 348. 
The indorsement by plaintiff "for collection" was notice to ail parties 
subsequehtly déàling with .the chpcks that the "plaintiff did not intend 
to transfer the title of the paper, or the ownership of the proceeds, to 
another. As was held in Cecil Bank v. Bank of Maryland, 22 Md. 



BANK OF THE METBOPOLIS V. FIRST NAT. BANK OF JERSEY OITY. 303 

148, the légal import and effect of such indorsement was to notify 
the défendant that the plaintiff was the ownerof the check8,,and that 
the Newark bank was merely its agent for collection. In First Nat. 
Bank v. Reno Co. Bank, 8 Pèd. Eep. 257, paper was indorsed, "Pay 
to the order of Hetherington & Go., on account of First National 
Bank, Chicago," and itwas held to be such a restrictive indorsement, 
as to charge subséquent holders with notice that theindorser hadnot 
transferred title to the paper, or its proceeds. .Under either form of 
indorsement the natural and reasonable implication to ail persons 
dealing with the paper would seem to be that the owner has author- 
ized the indorsee to collect it for the owner, and conferred upon him 
a qualified title for this purpose and for no other. Other authorities 
in support of this conclusion are Sweeny v. Eastor, 1 Wall. 166; 
White V. Nat. Bank, 102 U. 8. 658; Lee v. Chillicothe Bank, 1 Bond, 
389; Blaine v. Bourne, 11 E. I. 119; Claflin v, Wilson, 61 lowa, 15. 
The défendant could not acquire any better title to the checks or 
their proceeds than belonged to the Newark bank, except by a pur- 
chase for value, and without notice of any iniîrmity in the title of the 
latter. As the indorsement o| the checks was notice of the limited 
title of the Newark bank, the défendant simply succeeded to the 
rights of that bank. 

It is insisted for the défendant that tbere was no privity between 
the plaintifif and the défendant respecting the transaction, because 
the défendant was not employed by the plaintiff, but was the agent 
only of the Newark bank ; and it is argued that if the défendant is 
answerable to the plaintiff, so would be every other party through 
whose hands the paper might pass in the process of being coUected. 
In answer to this it is suffieient to say that the défendant is sued, nôt 
as an agent of plaintiff, nor upon any contract liability, but upon the 
promise iwhich is implied by law whenever a défendant has in his 
hands money of the plaintiff which he is not entitled to retain as 
against the plaintiff. It has long been well settled that want of priv- 
ity is no objection to the action of indebitatus assumpsit for money 
had and received. See note a, Appendix, 1 Cranch, 367, where the 
authorities are collated. 

As against the plaintiff, the défendant had no right to retain the 
proceeds of the checks as security or payment for any balance due 
to it from the Mechanics' National Bank of Newark, after a demand 
by the plaintiff. The plaintiff is therefore entitled to judgmeht. 



S04 FEDEBAL BEPORTEB. 

' WiiiSON and others v. Spadlding, CoUector. 

(Oirauit Court, N, D. IlUnois. January 22, 1884.) 

1. MiSTAKE m Statutb — Interprétation — Législative Iutent. 

An act of congres3, approved Aùgust 7, 1882, purports by its title to correct 
an error in section 2504 of the Revised Statutea; butin the body of the act tbe 
clause to be corrected is quoted as a part of " schedule M of section 25." Sec- 
tion 25 contains no schedule M, and bears upon an entirely différent subject, 
and tlie language quoted is found in schedule M of section 2504. Held, that 
the act corrects section 2504. 

2. Stathtb — Title. 

The title oî an act may be resorted to by the court for the purpose of eluci- 
dating what is obscure in the provisionary part. 

3. CusTOMS Dutibs — WooLBN Knit Goods. 

Certain woolen knit goods hdd dutiable nnder schedule L, and not under 
schedule M, as corrected by the act of August 7, 1882. 

At Law. 

Storck d Schumann, for plaintiffs. 

Gen. Jos. B. Leake, for défendants. 

Blodgett, J. This suit is brought to recover duties paid by the 
plaintiffs, under protest, to the défendant, as coUector of customs of 
the port of Chicago, upon certain woolen knit goods, shirts, and 
drawers imported by plaintiffs in September, 1882. The goods in 
question were charged with duty at the rate of 40 cents par pound, 
and 35 per cent, ad valorem, under the twelfth paragraph of class 3, 
schedule L, § 2504, which reads as foUows : 

"Flannels, blankets, hats of wool, knit goods, balmorals, woolen and 
worsted yarn, and ail manufactures of every description, coraposed whoUy or 
in part of worsted, the haïr of the Alpaca goat, or other like animal, except 
such as are composée of wool, not otherwise provided for, valued at not ex- 
ceeding forty cents per pound, twenty cents per pound; valued at above 
forty cents per pound and not exceeding flfty cents per pound, thirty cents 
per pound; valued at above sixty cents per pound and not exceeding eighty 
cents per pound, forty cents per pound ; valued at above eighty cents per 
pound, fif ty cents per pound ; and, in addition thereto, upon ail the above- 
named articles, thirty-five per centum ad valorem. " 

The only question in this case is whether the act of congress, ap- 
proved Augùst 7, 1882, entitled "An act to correct an error in section 
2504 of the Eevised Statutes of the United States," is applicable to 
and amenda schedule M of said section 2504? By its title this act 
purports to amend section 2504, but the body of the first paragraph 
of the act reads as f ollows : 

"The paragraph beginning with the words, «clothing, ready-made, and 
wearing apparel,' under schedule -M of section twenty-flve of the Eevised 
Statutes of the United States, be and the same is hereby amended by the in- 
sertion of the Word ' wool ' before the word ' silk ' in two places where it was 
omitted in the revision of the said statute, so that the same shall read as fol- 
io wa:" 

* 

Then folio wb the paragraph as it would read when amended. 



WILSON V. SPAULDIN». 305 

By the letter of the hody of this act, it is an amendment of section 
25 of the Eevised Statutes. The subject-matter of section 25 is the 
time of holding the élection for représentatives and delegates to con- 
gress in the states and territories ; while the subject-matter of this 
amendment is the rate of custom daties to be levied on certain kinds 
of imported goods. It is apparent from the reading that there is a 
niistake in the body of the act as to the section of the Eevised Stat- 
utes it was intended to amend, it being clear that it was not the pur- 
pose of congresB to amend section 25. The incorporation of this 
new matter into section 25 would not only be incongruous to the pur- 
pose of the original section, but it would be practically impossible to 
fit or adjust the new matter to the provisions of section 25, beeause 
there is no schedule M in section 25. The question is, can the court 
apply this act and make it operative, notwithstanding this obvioi^s 
mistake ? It is the duty of the court to so eonstrue any act of con- 
gress, if possible, as to efïectuate the intention of the législature in 
enacting it, when that intention can be ascertained from the act it- 
self . Now, it is clear from the body of the act that congress did not 
intend to amend section 25, and it is equally clear that the intention 
was to amend some section of the Eevised Statutes regulating duties 
to be paid on imported goods, and an examination of the sections of 
the Eevised Statutes regulating the duties on imported goods shows 
that section 2504 not only has référence to the duties on imported 
goods, but it contains a séries of sehedules identified by letters of the 
alphabet, among which is "schedule M," and as far as I bave been 
able to find by such brie! examination as my time would permit, this 
is the only section in the entire Eevised Statutes which contains a 
"schedule M." We find also in this schedule a paragraph begin- 
ning with the words, "Clothing, ready-made, and wearing apparel," 
and corresponding in every particular with the paragraph which the 
act in question purports to amend by the insertion of the word "wool" 
before the word "silk" in two places. In other words, insert the 
word "wool" in two places before the word "silk" in the paragraph 
of schedule M, § 2504, and you make a new paragraph, which reads 
exaetly as the act provides this paragraph in schedule M of section 
25 shall read when amended. 

But we are not left to the body and subject-matter of this act of 
1882 alone to détermine the intention of congress in enacting it. The 
title of the act is, "An aet to correct an error in section tiventy-five 
hnndred andfowr of the Eevised Statutes of the United States," It if, 
urged, however, by counsel for complainant that the title is no part 
of the act. The use which may be made of the title in construing an 
act of congress is, I think, well settled by a line of uniform décisions 
in the suprême court. In C7. S, v. Fisher, 2 Cranch, 358, that court, 
speaking by Chief Justice Makshall, said: 

"On the influence which the title ought to hâve in constniing the enacting 
clauses much has been said, and yet it is not easy to discover the point of 
v.l9,no.6— 20 



306 PEDESAL EEPOBÏEB. 

différence between the opposing counsel in this respect. Keither party con- 
tends that the title of an act can control plain words in the body of a statute; 
and neither dénies that, taken with other parts, it may assist in removing 
ambiguity. Where the intent la plain tUere is nothing left to construction. 
When the mind labors to discover the design of the legislator it seizes every- 
thing from which aid can be derived, and, in such case, the title claims a 
degree of notice, and will hâve its due share of considération." 

So the same learned judge said in U. S. v. Palmer, 3 Wheat. 610 : 
"The title of an aet cannot control its words, but may furnish some aid in 
showing what was in the mind of the legislator. " 

And in Hadden v. CoUector, 5 Wall. 107, Mr. Justice Pield, speak- 
ing for the court, eaid : 

"The title of an act furnished little aid in the construction of its provisions. 
Originally, in the English courts, the title was held to be no part of the act. 
' No more,' says Lord Holt, ' than the title of a book is part of a book.' It 
was generally framed by the clerk of the bouse of parliament where the act 
originated and was intended only aa a means of convenient référence. At 
the présent day the title constitutes a part of the act, but it is still consid- 
ered as only a formai part; it cannot be used to extend or restrain any posi- 
tive provisions contained in the body of the act. It ia only when the mean- 
ing of thèse are doubtful that resort may be hadto the title, and even then it 
has little weight." 

Thèse authorities seem to fuUy sustain the right of the court to 
look at the title for the purpose of ascertaining the intent of oongress, 
when the intent is doubtful or obscure from the body of the act. 
While, from the body of this act, read in connection with section 25, 
it is very clear that it was not the intent of congress to araend that 
section, yet it may be said ta be doubtful from the body of the act it- 
self what section it was intended to amend; but reading the body of 
the act and the title together, there can be no question what section 
the act ia applicable to. I am therefore of opinion that the act of 
August 7, 1882, ia an operative law, and was intended to aménd and 
does amend schedule M of section 2504, so as to throw the goods in 
question into the twelfth paragraph of the third class of schedule L. 

On argument, référence was made tb the proceeding of the senate 
at the time the act in question passed for the purpose of showing that 
the omission of the words "hundred and four" from the ûrst para- 
graph of the body of the act was not a mistake, but that attention 
was called to the omission. The debate on the bill as reported in the 
Congressional Eecord shows that on the last day of the session the 
bill came up for action in the senate, having passed the house, and 
some senators who would seem to hâve wished to defeat the bill in- 
aisted on amending it by inserting the words "hundred and four," so 
that it would read section 250é, but the friends of the bill believing 
that the effeet of an amendment at that stage of the session would 
be to defeat the measure, insisted that ah amendment was not nec- 
essary; tbat it was sufEciently apparent what part of the Eevised 
Statute was to be affected by the proposed act; and that the executive 
oflioers and the courts would properly construe and apply it. This 



TEBMONT FABM MACHINE 00. ». MAEBLB. 807 

citation of the de bâte in the senate only proves that the senators — 
that is, the majority who passed the bill — did not deem it ambiguous 
or incapable of application. 

The issue is found for the défendant. 



Vermonx Faem Machine Co, and others v. Mabble, Com'r, etc. 

(Circuit Court, D. Vermont. January 28, 1884.) 

Patent — Previous DjascmmoN. 

An inventer is not barred from obtalning a patent hecause his Invention bas 
been described, though not claimed, in a prier patent to tlie same inventor. 

In Equity. 

William E. Simonds and Kittredge Haskins, for orators. 

Wheeleb, J. The orators, on the thirtieth of March, 1880, flled 
an application for a patent for improvements in milk-setting appa- 
ratus, consisting, as ûnally amended, of nine daims, the last five of 
which hâve been allowed ; the first four bave been ref used, because 
described, although not claimed, in a prior patent to the same in- 
ventors, No. 207,738, dated September 3, 1878. Prior public use to 
bar tbe patent is denied on oath by the applicants, and is not shown. 
The refusai rests solely, apparently, on the prior description, and 
Campbell v. James, 104 U. S. 356. What is said in that case, taken 
at large, would seem to show that a patent coald not be granted for 
an invention described in a former patent to the same inventor. 
What was so spoken of there had been not only described but pat- 
ented in the former patent. What was said is to be understood by 
référence to what it was spoken of. That part of that case relied 
upon in tbis rejection is where it is said : 

"It is hardly neeessary to remarl: that the patentée could not Include in a 
subséquent patent any invention embraced or described in a prior one granted 
to himself, any more than he could an invention embraced or described in a 
prior patent granted to a third person. Indeed, not so well ; because lie migîit 
get a patent for an invention before patented to a third person in this coun- 
try, if he could show that be was the first and original inventer, and if he 
should prove an interférence declared." Page 382. 

The latter part of this extract relates to the same subject as the 
former part. It expressly refers to patented inventions by others ; 
and serves to show that patented inventions by the same inventor 
were intended where inventions embraced or discovered in his prior 
patent were referred to. The statute dbes not make prior description in 
a patent a bar, but being patented. Sections 4886, 4887, 4920, The 
court appears to hâve merely referred to:the plain effect of thèse stat- 
ute provisions, Iri Battin v. Ta^gert, 17 How. 74, it appears to hâve 
been expressly adjudged upon the same statute provisioiis as are in 



Î508 FEDERAI» EEPOKTEB. 

force now, that an inventor might hâve a patent for an invention de- 
scribed in a prior patent to himself . Tiie same seems to hâve been 
decided in Graham v. McCormick, 11 Fed. Eep. 859, on full argu- 
ment and much considération. According to the ternis of the stat- 
utes the orators seem to be entitled to the patent for thèse claims. 
There does not appear to be any settled construction to control other- 
wise. 

Let there be a decree for the applicant adjudging that he is enti- 
tled to receive a patent for the invention covered by thèse first four 
claims of his application. 



Eeay, Ex'x V. Eatnoe and others. 
( Otreuit Court, ii. B. New York. January 23, 1884.) 

fATENTS FOB INVENTIONS. 

Amended bill to cover reissue of patent allowed, though the patent alleged 
to be infringed by the flrst bill had expired before the amended bill was filed. 
Reissued letters patent No. 2,529, granted March 26, 1867, for improvements m 
envelope machines, held to hâve îjeen infringed by the défendants as to the flrst, 
second, and tenth claims, and an injunciion and accounting ordered. 

In Equity. 

Arthur v. Brlesen, for oratrix. 

Stephen D. Law and John Van Santvoord, for défendants. 

Wheelbb, J. The testator of the oratrix was the owner of reissued 
letters patent No. 2,529, granted March 26, 1867, upon the surrender 
of original letters patent No. 39,702, granted to him August 25, 1863, 
for improvements in envelope machines, which would expire August 
25, 1880. The bill was brought June 12, 1880, upon the original 
patent, without referring to the reissue, to restrain the use of ma- 
chines allègèd to be infringements, and for an account. No motion 
was made for a preliminary injunction. An answer was filed setting 
forth the reissue August 16, 1880; the oratrix moved to amend the 
bill, and September 22, 1880, it was by stipulation amended to cover 
the reissue in place of the original. The défendants now move, on 
the authority of Root v. Railway, 105 U. S. 189, that the bill be dis- 
missed for want of jurisdiction in equity, because the patent had ex- 
pired before the amended bill was filed, upon which only the oratrix 
could hâve any équitable relief. Dowelly. Mitchell, 105 U. S. 430. 
The infringement is solely by the use of machines made before the 
bill was brought and continued ever since, and would be covered by 
the gênerai allégation of infringement made in both the original and 
amended bills, if filed during the term of the patent, but the con- 
tinued use after the expiration of the term would not be so covered 
■by that gênerai allégation in a bill filed after the expiration; spécial 



BEAT V. BAYNOB. 309 

allégations setting forth that tfae machines were infringements when 
made would be necessary. Root v. Bailway, supra; Amer. Diamond 
Rock Boring Co. v. RiUland Marble Co. 2 Fed. Rep. 355. It is urged 
for the oratrix that the anended bill is to be considered for this pur- 
pose as if tbe original had been as it is amended, when filed, and for 
the défendants that it is to be considered as if it had been filed as an 
original bill when it was filed. The oratrix had the reissue when she 
brought her original bill, and must hâve intended to bring her bill 
upon the patent which she had, and net upon one which she did not 
hâve, Under thèse eiroumstances it would hâve been compétent for 
the court to allow the amendment. That which could be done by 
the court without consent could well be done by the parties by con- 
sent. When done, it made the bill as it should bave been at first, 
and, in effect, as if it had been so at first. Such amendement only 
was necessary as would make the bill what it should hâve been to be 
good when brought, not what would hâve been necessary to make it 
what it would hâve to be to be good at some other time. If the ora- 
trix has shown a case for any équitable relief, she is, upon ail the de- 
cided cases, entitled to hâve the bill retained for that, and such cog- 
nate relief as is necessary to do complète justice. Dowell v. MitcheU, 
supra. 

The défendants set up that the reissue is too broad for the original. 
The original showed and described two arms, extending from a table 
in the interior of a machine under which the envelope blank is made 
to pass on its way to a creasing box in the rear, — ^one on each side of 
the box, — to or nearly to a line with the rear side of the box. No use 
for thèse arms was stated. In the reissue thèse arms are described 
as applied in such position that they extend parallel to the edges of 
the creasing box with their lower edges level with, or rather below, 
the top edge of the box so as to bear down on the ends of the blanks 
and hold them in position on the box to be creased, and as secured 
to the table or any other fixed part of the machine. No other référ- 
ence to the table in connection with them is made. No claim was 
made in the original in respect to them. They are the subject of the 
new fourth claim. The original showed thèse arms only as extensions 
from the table. Their heigbt in respect to the creasing box was not 
shown with accuracy otherwise than by référence to the table. As 
no function was ascribed to them their position could not be inferred 
from what they were to do. When they were described as in a cer- 
tain position, with référence to the creasing box instead of the table, 
and as attachable to some o