This volume was donated to LLMC
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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 other part of the machine when they would
not be extensions of the table, and an office was ascribed to them, an
invention différent from that in the original ^as shown. This claim
was too broad to be added at any time, and therefore void. GUI v.
Wells, 22 Wall, 1; Russell v. Dodge,M U. S. 460. Besides, the re-
issue was taken out more than three years after the original, and
would seem to be for that reason unreasonable and invalid. Milier
810 rSDEBAL BEPOBTEB.
V. Brldgeporf Brass Co. 104 U. S. 350, That tbis daim is invalid
does not necessarily render the other claiiûB of the original, repro-
duced in the reissue, invalid. Schillinger v. Greenway Co. 24 0. G.
495; [S. C. IT Fed. Eep. 244;] Gage v. Herring, lOÎ U. S. 640;
[S. 0. 2 Sup. et. Eep. 820.] In the first claim in both,. what is
ealled a slide in the original is called a carrier in the reissue. The
description of it or of its opération is not changed. The claim is in
substance the same in both. Only the first, second, fifth, seventh,
tenth, and twelfth claims, besides the fourth claim of the reissue, are
said to be infringed. The fifth claim is merely for feeding the blanks
iinder the table which supports the gum-box, instead of over it. The
machinery described, some of which is the subject of other claims,
does feed the blanks under that table. The claim is merely for that
funotion or mode of opération of that machinery. As such, this
function or mode of opération does not seem to be patentable apart
from the machinery. Mc^ay v. Jacfcmare, 20 Blatchf. 466; 12 Fed.
Eep. 615. Want of novelty of the other claims is alleged, and in-
fringement of them is denied.
Envelope machines were in use before this invention. This in-
ventor was entitled to and elaimed a patent only for fais improve-
ments. Slides or platforms to hold envelope blanks, lif ters, or pickers,
to reçoive gum on their faces and take it to the proper place on the
blank, and, by its adhesiveness, to lift them so they could be taken
by carriers or conveyors, carriers or conveyors to take them to a
creasing box, creasing boxes to crease them, and folding apparatus
to fold them, were ail then known. The seventh claim is for a bal-
ance weight connected with this f orm of conveyor ; and the twelfth,
for ribs oh tbe face of the plunger which works in the creasing-box,
and presses the envelopes after they are folded. The défendants are
not found to make use of either of thèse devices, or what is the
équivalent of either, in the working of this invention.
In this invention the lifters or pickers, after receiving gum on their
faces, fall by their own weight upon a pack of blanks on a movable
slide, which receives the pack and carries it to and holds it in the
proper place, and lift the upper blank until it is disengaged by the
table supporting the gum box, and taken by the conveyor under the
table and steadied by it to the creasing box. This combination of
the movable slide and falling lifters and arrangement of the table and
conveyor form the subjects of the first and second claims. Also, a
cam and roUer, connected with the plunger, bring its face to a press-
ure upon the envelope to stick its foîdsfirmly after it has been folded.
This cam and roUer, in combination with the plunger, are the subjects of
the tenth claim. Careful and repeated examinations of the machines
. and patents put in évidence to show anticipations and want of novelty
bave failed to diseover such combinations and arrangements as those
covered by thèse three claims. The falling lifters, the arrangement
of the table over the conveyor to steady the blank, and the combina-
BEAT V. BERLIN & JONES BNTELOPB 00. 311
tien of tbe cam and roller with the plunger, appear to be new with
tbis invention. Tbese claims, therefore, appear to be valid. Tbe
défendants' macbines bave the movable slide to carry the pile of
blanks to tbe proper position under the pickers, the falling pickers,
and the conveyor arranged under the table supporting the gum-box ;
they aiso hâve the cam and roller pressing the support of the envel-
ope against the plunger, instead of the plunger against it, to presB it.
Tbe support is the équivalent of tbe plunger for tbis purpose. There-
fore, the défendants are found to infringe tbese three claims by the
use of the machines made during the life of the patent in violation of
tbe rights of the inventer; and it appeara tbat they would continue
tbe use if not restrained.
It is claimed tbat the inventor so conducted bimself, by seeing ma-
chines similar to tbose of tbe défendants made witbout claiming tbat
they infringed bis patent, tbat neitber be nor the oratrix, as bis Per-
sonal représentative, could bave any équitable right to restraiu tbeir
use. It does not appear, bowever, tbat be led tbe défendants into
any expenditure or course of conduct by bis silence when be ougbt
to bave spoken vyhicb they would not bave made or followed if be
had spoken. The faet of the patent was open to them, as well as
known to him. They could respect it, or take the risk of baving
what tbey did turn out to be an inîringement. They chose the lat-
ter course, and be does not appear to bave been responsible for tbeir
choice. Tbe oratrix appears to be entitled to an injunction to re-
strain the use of so much of thèse machines as were infringements
when they were made. Crossley v. Derby Gas-light Co. Wébst. Pat.
Cas. 119; 4 Law Jour. (N. S.) Ch. pt. 1, p. 25; American, etc., Co. v.
Sheldon, 18 Blatchf. 50; [S. C. 1 Fed. Eep. 870;] Gurt. Pat. § 436.
The nght to an account for past infringement foUows.
Let there be a decree tbat the first, second, and tenth claims of
tbe patent are valid and bave been infringed, and for an injunction
against tbe use of sueh parts of machines as were made in violation
of tbose claims, and for an account, witb costs.
Eeay V. Berlin & Jones Envelope Go> .
{Circuit Court, S. D. New Ymh. January 23, 1884.)
Patent for Invention.
Reay v. liaynor, anie, 308, followea.
In Equity.
Arthur v. Brîesen, for oratrix.
S. D. Law, for défendant.
Wheelbr, J. Tbis suit is brougbt upon the samé patent, in the
same manner, and involving the same questions' as to its mainte-
312 FEDERAL BEPOBTEB.
nance, as that of Eeay v. Raynor, ante, 308. The cause is upheld for
the same reasons, and the patent is sustained to the same estent, upou
the same grounds, as in that case. Only the second, fourth and fifth
claims are said to be infringed hère. Of thèse only the second is held
to be valid. The défendant appears to infringe this claim. Their
machine has the arrangement of the table over the conveyor so that
the blanks are held even and in place by the table while being carried
by the conveyor to the creasing box, as described in that claim.
Let a decree be entered for the oratrix accordingly.
Bell and others ». United States Stamping Co.
{Circuit Court, 8. D. New York. January 24, 1884.)
1. Patents pob Inventions— Inpringbmbnt.
It is no answer to an action for infringeraent of a patent, that ail the parts of
the patent were known before, if they were not kaown in that comiuction and
arrangement.
2. Same.
Letters patent No. 140,61&, dated July 8, 1873, granted to John B. Firth, for
an iraprovement in cake-pans, and now owned by the plaintitf, held, to be in-
fringed by letters patent No. 255,045, dated March 14, 1882, and granted to
Joseph Smith for a patty-pan.
In Equity.
George H. Fletcher, for orators.
J. L. A'^. Hunt and C. R. Ingersoll, for défendant.
Wheeler, J. This suit is upon letters patent No. 140,619, dated
July 8, 1873, granted to John B. Firth, for an improvement in cake-
pans, and now owned by the orators. The défenses are, want of nov-
elty in the invention, want of invention in the patent, and non-in-
fringement. The patent is for a cluster of cake-pans united to a
plate having an aperture for each pan by a double-seam joint formed
from the rim of the cup tumed outward and the edge of the plate
about the aperture turned upward, on the upper side of the plate.
The défendants make and sell similar clusters, but the double-seamd
joint is formed of the rim of the pan turned outward and then inward,
and of the edge of the plate turned downward on the underside of the
plate, according to letters patent 255,045, dated March 14, 1882, and
granted to Joseph Smith, for a patty-pan. The principal things of
this sort preceding Firth's patent were clusters of cups fastened to
frames, pans riveted through the bottom to a plate, pans put through
apertures in a plate with their rims turned ont flat and riveted to
the plate; pits in steam-tables and in the bottoms of wash-boilers,
fastened by double-seamed and soldered joints; and double-seam
joints in use generally âmong wares of thèse kinds. This pateuted
MUNSON V. OITÏ OF NEW YORK. 313
invention is not of the pans, or the plates, or tbè seams, but of the
whole manufacture. The nearest previous approach to it ia kind was
the cluster with the rims riveted to the plate; and the nearest in
principle v?as the bottom of the wash-boiler. Such a bottom, with
two or four pits, as the évidence shows were made, would be awkward
to use for, and hardly suggestive of, thèse small cake-pans. The
rivets in the riveted cluster might be the équivalent of the double-
seam joint, as a mère mode of fastening pièces of sheet-metal together
in some places, for some purposes ; but it would not be the équivalent
in this place for this purpose. An even and smooth union was re-
quired; the riveted joint was rough and uneven; the double-seam
joint there was nearly ail tbat was désirable in thèse respects; and
although not a new thing it was new in this place, and more than
mère mechanical skill was requisite to the construction and arrange-
ment of the necessary parts for successfuUy putting it there. It is
no answer to the patent that ail the parts were known before, if they
were not known in that connection and arrangement before. Smith
V. Goodyear Co. 93 U. S. 486; Wallace v. Noyés, 13 Fed. Ebp. 172.
The défendant insists that, if the patent is valid, as there were
double-seam joints, and cake-pans, and clusters of cake-pans fastened
in a plate before, it can onlycoverFirth's précise mode of unitingthe
cake-pans in a cluster to the plate by the double-seam joint. Ry. Go.
v. Sayles, 97 U. S. 554. This is doubtless true; and the défendant
would not be liable if bis mode was lef t to the orators who own the pat-
ent. His mode is the use of the double-seam joint there. The de-
fendant has not left that but bas takeu it. His mode of using it bas
been changed, and perhaps improved upon, and that improvement has
been patented, and perhaps properly patented, but that gives no right
to what was before patented.
Let there be a decree for the orators for an injunction, and an ao-
count, with costs.
MuNSOH V. Mayoe, Etc., of New York.
{Cireuil Court 8. D. New York. 1884.)
Patents for Invbntiohs — Suspension ov Injonction — Pubmc Intbrest —
inconsistbnt contentions.
After a final decree establishing an exclusive right to the use of a patent and
awarding an injunction to protect it, the injunctions will not be suspended
■while the decree stands unreversed, unless some extraordinary cause outside of
thf! interests of the parties is shown. Public necessity may be a cause for such
suspension ; but the défendant, after insisting that the invention is of no use
and benefit, and thus defeating the orator's claim for substantial damages on
account of infringement, will not be heard to allège that it is of such public
importance as to warrant a court in suspending Uie injunction.
In Equity.
Slé FEDEBAL BEPOBTEB.
Royal S. Crâne, for orator.
Frédéric H. Betts, for défendant.
Wheelee, J. This cause bas now been heard on a motion to sus-
pend the injunction heretofore granted, during the pendency of an
appeal from the final decree awarding to the orator a merelj nominal
sum for profits and damages, and a small balance of costs of the
suit. After a decree on final hearing, establishing an exclusive right,
and awarding an injunction to protect the right, the injunction is
not suspended unless some extraordinary cause is shown to exist out-
side the rights of the parties established by the decree. Potter v.
Mack, 3 Pisher, Pat. Cas. 428 ; Brown v. Deere, 6 Ped, Eep. 487.
This patent is for a register to préserve for safety, and convenienee
of référence, paid bonds and coupons. The défendant used the pat-
ented register for this purpose as any corporation, partnership, or
individual issuing and redeeming coupon bonds would. The use by
the défendant is not publie any more than such use would be, nor
any more than any business transaction of the city is. The city is a
public municipal corporation, and a large part of the public hâve a
pecuniary interest in its financiai transactions of aU kinds, and this
is ail the interest of the public in this question. It does not affect
the convenienee, enjoyment, or business of the individuals composing
thè public, at ail. It touches only the convenienee of the ofiScers
whose duty it is to préserve the bonds and coupons safely, and refer
to them when necessary. On the accounting it was insisted on behalf
of the défendant that this convenienee was of no value or benefit,
and with such success that a decree bas been entered to that effect.
It does not now seem to be équitable and just, in view of that resuit,
to allow that a deprivation of that convenienee is too grievous to
be borne. The orator, as the case now stands, is entitled to the
exclusive use of bis patented invention. If the injunction should
be suspended during the appeal, and the decree be aifirmed, the ora-
tor would be left to another accounting, either in a new suit or under
some order in this one, whioh, if it should foUow the former resuit,
would be much worse than fruitless. The appeal really involves
nothing, so far, but the costs of suit. There seems to be no reason
why the orator's right to his monoply should not be protected in the
usual modes ; in fact, it does not appear that they can be fuUy pro-
tected but by this injunction ; the motion cannot therefore justly be
sustained.
Motion denied.
DBÏF003 V. WIESB. 815
DeTFOOS V. WlESB.'
{Circuit Court, 8. D. Nei» York. Januaiy 24, 1884.)
1. Patents for Intentions— IiîFRiNOEMBNT—CiiAiMS m Keisbubs itot Fomm
m THE Original.
A claim of a second reissue of letters patent held invalid as going bejond the
invention shown in the original. But where a new claim contained in a flrat
reissue was brought forward into the second, it being valid in the ârst reisaue,
Md, not avoided by the invalid daim of the second reissue.
8. 8ame.
Complaint for infringement of reigsued letters patent No. 9,097, granted
February 2i, 1880, to August Beck, assigner to the orator, for an improvement
in quiltiag-machines, dismissed.
In Equity.
Edmond Wetmore, for plaintiff.
Gilbert M. Plympton, for défendant.
Wheeler, J. This suit is brought upon reîssned letters patent
No. 9,097, granted February 2é, 1880, to August Beck, assigner, to
the orator, for an improvement in quilting-machines. The original
was No. 190,184, dated May 1, 1877. It was reissued in No. 8,063,
dated January 29, 1878, and surrendered for the reissue in suit. The
improvement was, and is stated in the original and reissues to be,
for improvements on the quilting-maohine shown in letters patent No.
159,884, dated February 16, 1875, granted to the same inventer.
That machine was for quilting by gangs of needles in zigzag parallel
Unes, and was fed by cylindrical roUs having an intermittent rotary
motion, which would move the cloth while the needles were out of it,
and could be arranged to feed in straight Unes, direct or oblique, The
original of the patent in suit showed différent mechanism for aotuating
the feed-rolls, so that the length of stitch could be varied at pleasure,
and couical roUs having an intermittent motion to feed the conical
bodies of skirts and skirt borders in a circular direction, when the
needles were out of the cloth, as well as cylindrical roUs for straight
goods, and other improvements upon other parts of the machine;
and had claims for the feed mechanism, and improvements upon the
other parts of the machine, but none of the conical feed-rolls. The
first reissue further described the conical feed-rolls as made of such
taper as to conform to the shape of the skirt or border to be quilted,
and claimed the combination of the séries of needles with the conical
feed-rolls acting intermittently, in place of one of the other claims.
Tbe reissue in suit still further describes the conical feed-rolls as the
embodiment of a feed device which extends substantially through-
out the width of the conical strip of goods, and as it départs from the
shorter curved edge and approaches the longer curved edge is adapted
to hâve a proportionately increased range of feed-movement, so that
it will feed the conical strip of goods in the requisite curved path
evenly and without any injurions strain or drag, and further claims
'Afarmcd See 8 Sup. Ct. Rep. 354.
316 FEDEEAL EEPOETER.
the combination with tlie gang of sewing mechanism, and the cloth
plate which supports the goods under them, of a feed device oper-
ating intermittingly in the intervais between the formation of the
stitches,- which extends and opérâtes substantially across the conical
strip of goods, and which, as it départs from the shorter curved edge
and approaches the longer curved edge of the goods, is adapted to
hâve a proportionately increased range of feed-movement. The de-
fendant is engaged in using a quilting-machine for quilting conical
goods having a gang of needlea, and short cylindrical feed-rollers at
each edge of the goods which they feed in a circular direction by
moving at différent rates of speed constantly, the needles having a
forward movement corresponding to that of the cloth while in it; and
also one with a four-motion feed, which is capable of feeding in a
circular direction by lengthening the feed at the longest edge of the
goods; but is not shown to hâve been so used or intended to be so
used. The validity of the reissue, and infringement of it, if valid,
are denied.
Beck well appears to hâve meritoriously invented effective meana
for giving circular direction to the feed of quilting-machioes, having
gangs of needles for quilting several parallel seams. He set forth
thèse means in the spécifications and drawings of his original patent,
and seems to hâve been well entitled to then hâve a patent for them,
and for the combination of the mechanism with the gang of needles.
But he does not appear to hâve been entitled to a patent for merely
givjng such direction to such feed-motion apart from the mechanism,
nor to the process of opération of his mechanism for giving such di-
rection. McKay v. Jackman, 20 Blatchf. 466; 12 Fbd. Eep. 615.
Neither eould he claim the combination of mechanism not then known,
or its processes with the needles. He invented his own mechanism,
and the combination of that with the co-operating parts of the ma-
chine, and nothing more; and seems to hâve been entitled to a pat-
ent for those and no more. The first reissue was within a few months
of the original, and before others appear to hâve done anything in
that région of invention, and seems to hâve been well enough. Meyer
V. Goodyear Manuf'g Co. 11 Fed. Eep. 891 ; Hartshorn v. Eayle Shade-
Roller Go. 18 Fed. Eep. 90. The second reissue was more than two
years after the original, but, whether too long after or not, was, in effect,
for the combination of the gang of needles and cloth plate with any
feeding mechanism which would reach across the cloth and feed the
long side faster than the other, This was clearly beyond the invention
shown in the original, and, except as to the mechanism shown in
the original, beyond the invention in every way. This claim of the
reissue is therefore whoUy invalid. Wing v. Anthony, 106 U. S. 142;
[S. G. 1 Sup. et. Eep. 93 ;] James v. Cam.pheU, 104 U. S. 3,56. The
new daim of the first reissue brought forward into the second, being
valid in the first, is not avoîded by the invalid claim ef the, second.
Schillinger v. Greenway Go. 24 0. G. 495; [S. G. 17 Fed. Eep. 244;]
ADAUS V. HOWABD. 817
Gage v. Herring, 107 U. S. 640; [S. C. 2 Sup, Ct. Eep. 820.] The
orator appears therefore td be entitled to a monopoly of the couical
rollers in that combination. It is argued that the defendant's ma-
chines invade that monopoly. Those machines bave not conical roll-
ers, nor are they elaimed to bave any of bis other meohanism, It
is said that there is no invention in dividing the conical rollers into
parts, and that the parts are the équivalent of the whole. This is
not what the défendant does, The orator's machine gives the eirou-
lar direction by mechanism that accomplishes that resuit in one way,
the défendants by différent mechanism that accomplishes it in a
différent way. That claim, therefore, is not infringed.
Let there be a decree dismissing the bill of complaint, with costs.
Adams and others v. Howard and another.
ICircuit Court, 8. D. New York. February 6, 1884.)
1. Letters Patent — Basket Lantbrn.
The validity of letters patent granted to John H. Irwin in 1865, for an îm-
proved basket lautern, sustained.
2. RiGHT TO Part of the Belibp Souoht whbn thb Best Oanmot bb Givbh.
The expiration of a patent, pending a suit for its infringement, will defeat a
prayer for an injunction, but not for an accounting, though the bill contains
both.
3. CoBTS— Wheee Both Parties Hâve a Dbcrbb.
When two distinct causes of action are united, and one party prevails in each,
costs will be allowed to nelther.
In Equity.
Betts, Atterhury é Betts, for complainants.
Jas. A. Whitney, for défendants.
Wallacb, J. Infringement is alleged of two letters patent for im-
provements in lanterns, granted to John H, Irwin,one May 2, 1865, and
the other October, 24, 1865, both of which bave been assigned to the
complainants. The second patent only is infringed upon the construc-
tion of the claims of the first patent adopted and expreesed at the
hearing of the cause, which limits it to a lantern having two horizon-
tal guards connected by a hinge or catch, whereby the lantern may
be opened at or near the middie of the globe. Infringement of the
second patent is not contested. The claim is to be construed as one
for a loose globe lantern, in which the globe is protected by a basket
of guards, and is held in place by the top of the lantern when the
lantern is closed, the basket being hinged at its upper horizontal
guard to the top of the lantern, and opened by a spring catch oppo-
site the hinge. The spécial utility of the device over the lantern of
the first patent consists in the protection of the loose globe against
318 -^DERAIi BSPOETEB.
accident, in case tbe catch is accidentally unlocked, aa when unloeked
the basket will prevent the globe from falling out.
It is insisted that there is no patentable novelty in the improve-
ment, but, aa was suggested at the hearing of the cause, assuming
that Irwin's iirst patent was granted before the lantern of the second
patent was invented, it is believed that the change made in the laat
lantern was not such an obvious one as to négative the exercise of
invention. As the lantern of Irwin's first patent approximates to
that of the second far more closely than any other preoeding device,
it is unnecessary to examine further into the prior state of the art.
The différence between the lantern of the second patent and that of
the first consista only in a new location of the hinge and spring catch,
and the employment of a horizontal guard to form the upper rim of
the basket for the purposes of this new location. This change of lo-
cation seems to hâve been a very simple thing after it was made.
But simple as it may hâve been, it remedied a grave defect in the
lantern of the first patent; and the advantages which it introduced
were immediately recognized by the public. Others who were act-
iveiy experimenting in the same field of improvement failed to dis-
cover how readily this change could be made and what advantages
would resuit by its being made.
The défense that the patent is anticipated by the lantern described
in the prior application for a patent by Anthony M. Duburn is not
tenable, because there is no évidence, except his application for a pat-
ent, that he ever invented such a lantern. It was conceded by bis
Bolicitors upon the application that the model accompanying his ap-
plication would not answer for use as a lantern, although it was suf-
ficient to illustrate the construction of the device; and the examiner
in charge condemned the model as inoperative. As there is no évi-
dence in the case to show that such a lantern as was described in the
application and illustrated by the model was everactually constructed
by Duburn, sufficient does not appear to defeat the novelty of Irwin's
invention.
It will not be profitable to consider in détail the numerous objec-
tions urged by the défendant to the complainant's title to the patent.
The conclusion reached is that the complainant Adams is vested with
the title to the patent which was acquired by the Chicago Manufac-
turing Company, October 6, 1866, togetherwith therightof action of
that Company to recover for infringements since that date. This title
is, of course, subjeet to the license which had been granted by that
Company to Archer and others to make and use the invention in this
state and elsewhere. The complainant Dietz has acquired an undi-
vided third interest in this license by the transfer of Pancoast of
March 24, 1881. No objection having been taken by demurrer or the
answer to the non-joinder of the other two owners of this license,
such non-joinder can not now be insisted on to defeat a decree. If
thèse parties are within the junsdiction of the court, which does not
SCHALSOHÂ V. SUTBO. S19
appear, a decree can be made without affecting their rîghts, and which
will completely adjust the rights of ail the parties to the suits as be-
tween themselves. In this view the recovery by Dietz must be lim-
ited to one-third of the damages and profits, by reason of the making,
and using of the invention, accruing since March 24, 1881. The
case does not disclose snch lâches on the part of the owners of the
patent as should defeat an accounting. While infringements by va-
rions parties and for considérable periods hâve been shown to hâve
taken place during the life of the patent, the eircumstances fail to
establish acquiescence in the instances where the infringement was
known to the owners of the patent.
No doubt is entertained of the propriety of decreeing an account-
ing, although the patent has expired since the commencement of the
suit, and although for that reason there should not be an injunction.
The jurisdiction of a court of equity having been legitimately in-
voked by the complainant, he will not be sent away without redress,
merely because ail the redress to which he was originally entitled
cannot now be awarded to him. Under such eircumstances, the court
will retain the cause in order to completely détermine the controversy.
Gottfried v. Moerelm, 14 Fed. Ebp. 170.
Inasmuch as the complainants hâve united two distinct causes of
action in their bill, and upon their allégation that the' défendants'
lantems inf ringed both the letters patent, hâve compelled the défend-
ants to litigate both, and as to one of thèse causes of action the défend-
ants hâve prevailed, neither party should recover costs as against the
other. Strickland v. Strickland, 3 Beav. 242; Crippen v. Heermance,
9Paige, 211; Elfeltx. Steinhart, 11 Fkd. Ebp. 896, 899.
A decree is ordered for complainants in conformity with this
opinion.
BoHALScHA V. SuTEO and othera.
(Circuit Court, 8. D. New York. February 6, 1884.)
Lkttehs Patent — Pbrfobatbd Cigae.
Letters patent No. 186,628, for a cigar with a hole in the end, cover only ci-
gars manufactured by the machine described in the spécifications. It \a no in-
fringement to punch a hole in the cigar with a pencil.
In Equity.
Edmonds é Jérôme, for complainant.
HamUton Cole, for défendants.
Wallaoe, J. The claim of the patent to Schalscha (No. 186,628,
granted January 3, 18Î7) is "a cigar constructed as described, with a
longitudinal opening, H, in its drawing end, and the end of the wrap-
per, A, secured permanently within the aperture, as and for the pur-
320 fEDEBÂL BEFOBTEB.
pose set forth." Eead with the description, however, thé claim must
be limited to one for the cigar when made by the machine described
in détail by the patentée as employed by him for the purpose, or a
substantially similar machine. No mode of making such a cigar is
disclosed in the spécification except by means of the machine de-
scribed. . The machine is described with parfcicularity, and the mode
of operating it ; and among the advantages enumerated as the resuit
of the invention are those which could only resuit from the employ-
ment of the particular machine. There is no évidence that the de-
fendants' cigars were made by a machine ; on the contrary, the proof
is that the hole in the tip was punched by a pencil.
The bill is dismissed.
MuNSON and another v. HalIi.
{dretiU Court, 8, D. New York. February 6, 1884.)
Patents— Imphovbd Papbb Box.
The distinctive characteristic of letters patent No. 124, 319, for an improved
paper box, consista in the closed corners ; and a box of which the end can be
turned down is uot an infringement.
In Equity.
Munson é Philipp, for complainants.
James A. Hudson and Frédéric H. Betts, for défendant.
Waldace, J, The complainants letters patent (No. 124,319, granted
to Beecher and Swift, assignors, March 5, 1872) describe an improved
paper box of the olass which are provided with tubular sliding covers,
and commonly used for containing matches, etc. The box is made
from a blank sheet of paper eut and creased so as to form a bottom,
two side flaps, two end flaps provided with projecting end pièces, and
two corner pièces which may be used or discarded at pleasure. The
side flaps are turned up to form the sides, and the end flaps are turned
up to form the ends, after which the corner pièces are folded around
the side flaps, and the projecting end pièces are turned down into the
top of the box. The spécification states that "after thus folding the
several parts together they are united by pasting the overlapping
corner pièces to the side flaps, the whole forming a strong and dur-
able box." The inventors point out two objections to the boxes pre-
viously in use, and which are obviated by their improvement. One
of thèse is insufficient strength and rigidity owing to the absence of
the corner pièces. The other is the liability of the contents to escape
if one end of the box should accidentally project slightly from the
tubular cover.
There are two claims: (1) The combination with a paper box
UATTHBWS V. IBON OIiAD VUlSVv'q 00. 821
adapted to a tublilar cover of the projecting end pièces arranged sub-
stantially as and for the purposes described ; (2) a paper box con-
structed substantially as described, with overlapping corner pièces, and
with overlapping end pièces partially covering the end of the box.
Infringement is alleged of the first claim only. The défendants use
a blank eut and creased like complainants' blank, except without any
corner pièces, which they fold into box form with sides and ends and
projecting end pièces, and thas make a réceptacle to hold cigarettes
which is not pasted at the corners, but in which the whole end can
be opened without removing the réceptacle from the tubular cover.
It is a loose réceptacle adapted to expose the whole end while the
body remains within the tubular cover. The complainants' patent is
for a difîerent thing. It is for a box in which the parts are united at
the ends and sides. If made without the corner pièces it is "joined
together at the corners to form the sides and ends of the box," as the
pre-existing boxes are described in the spécification to hâve been made,
but has the projecting end pièces to prevent escape of the contents
by accidentai exposure. If made with the corner pièces it has the
additional strength and rigidity which they confer upon it. No wider
scope can be given to the olaims in view of their terms, the descriptive
position of the spécifications, and the spécifie improvements over the
existing boxes which were contemplated by the iuventors.
The bill is dismissed.
Matthbws V. Ieon CiiAD Manuf'g Co.
(Oireuit Court, 8. D. New York. February «, 1884.)
Patents foe ImmirrioNS — Evidbncii! — Judgmbnt — Btrangess to thb Boit.
A decree ubtained by the plaintifE in an action to recover for the infringe-
ment of his patent cannot be introduced in an action against a stranger to the
former suit for the purpose of proving acquiesence in the plaintifC's use of the
patent.
In Equity.
Briesen é Steele, for complaînant.
Betts, Atterbury é Betts, for défendant.
Wallace, J. The défendant moves to expunge from the proofs
certain decrees introduced by the complainant, obtained in actions in
which he was complainant, adjudicating the validity of the patent
upon whioh the présent suit is brought. Thèse decrees were obtained
in suits against infringers to which the présent défendant was not a
party, or privy. The évidence was introduced against the defend-
ant's objection, and is now insisted on as tending to show acquies-
cence in the rights of the plaintiff nnder his patent. If it were nec-
essary for the complainant to show that he had asserted his rights
v.l9,no.5— 21
Sâ2 nU>l!BAL BïF0BT>B.
under the patent, before the présent sait, doubtless tbe records would
be évidence that he had brought suits and prosecuted them to final
judgment. They are not compétent, however, as admissions of third
persons, because the défendant cannot be prejudiced by sueh admis-
sions. The effect of such decrees is considered by Mr. Justice Nel-
son iaBuck v. Hermance,! Blatchf. 322, where heheld that, although
admissible upon motions for a provisional injunction in which theor-
dinary rules of évidence do not obtain, they are proceedings inter alios,
and therefore not compétent on a trial upon the mérita.
The motion is granted.
Time Télegeaph Uo. v. Himmbr and others.
(CKreuit Court, S. D. New York. January 30, 1884.)
Patents— EsTOPPBi,.
The inventor ,of a certain meçlianism assigned the iraprovement to h!s em-
ployers, by whom it was patented. tVhile in the same enipioy he ordered a
mechanism to be made which he represented as a modification of tbe patented
invention. After leaving the service of liis employers he manufacttired ma-
chinery identical with whaf he had previously ordered to bé made. Held, that
he, and those in privity with him, were estopped tb dény that thé mecbanism
in question was covered by the patent.
In Equity.
B. S. Clark, for complainant.
Roscoe Conkling and E. N. Diekerson, Jr., of counseL
l^rner, Lee é McGlure, for Himmer and Carey.
B. F. Lee, 6î counsel.
Wallace, J. . The peculiar facts of this case authorîze the grant-
ing of a preliminary injunction as to eome of the défendants, although
the complàinaht's patent is of récent date, and has never been ad-
judicated. The défendant Himmer was the inventor and assigner
to the complainant of the improvement in electric clocks, described
and claimed in the letters patent of the complainant. Whjle he was
in the employ of the complainant as its superihtendent he ordered
certain clock mecbanism to be made, which was identical in parts
and arrangements with that now sought to be enjoined, respresent-
ing it to be one of the modifications of the invention secured by the
patent. Spécial tools and dies were obtained to eonstruct this me-
cbanism, and the complainant's officers, assuming that the complain-
ant was protected by the patent, bave embodied this. mecbanism in
their clocks, and introduced them to the public. After Himmer left
the complainant's employ he induced the manufacturers who were
then making this clock mechanism for the complainant, to Bupply
faim with. the varions parts sufficient to make a number of complète
olooka. Thèse liave been put together by him, (or bis wife, in whose
name the clock-making business is carried ou,) and through the agenoy
of the défendant Carey, who seems to hâve been eognizant of ail thé
facts, and to be the principal prompter of the transaction, are now
being introduced to the public in compétition with the complainant's
clocks. Upon thèse facts Himmer is estopped, for the purposes of a
motion like thia, from oontesting the validity of the patent, or deny-
ing that the clock mechanism he employa ia coveted by th« claims
of the patept. He cannot be heard to assert eitherof thèse défenses
after inducing the complainant to acquire the patent and engage in
making and selling clocks under it, suoh as he now undertakes to
make and vend. Carey occupies no better position . thah Himmer
does. He is Himmer's alter ego in the soheme of pirating the com-
plainant's rights. His gênerai déniai of community of interest with
Himmer goes for nothing, in view of the facts and circumstances
which are set forth in the complainant's affîdavits, and which are
sufiBcient to oall upon him for a full and explicit disclosure of bis
relations with Himmer, in order to exonerate himself.
Np case is made for an injunction against the défendants other
than Himmer and Carey. As to Himmer and Carey, an injonctioD
is granted; as to the other défendants, the motion is denied.
GiBBS V. HoBFNER and othera.
{Oireuit OouH, N. D. New York. Febraarjr 1, 1884)
1. Patents— Uttlitt.
A patent will not be declared voidfor inutilité if It poaaesses any ntllity what-
soever, even the Blightest.
a. Bamb— LiCBNSB TO Use not Assignable,
A license to.use a patented process at the licensee'a place oï t>iuUiti8s, and U>
associate others with him in such use, is not assignable.
In Equity.
James S. Gïbhs, complainant in person.
Adelbert Moot, for défendant.
CoxE, J. The complainant, who is ovmer of a three-fonrths inter-
est in letters patent issued for an improvement in the manufacture of
Boap, seeks to recover the gains and profits which bave accrued to
the défendant Hoefner by reason of his alleged inîringement. The
other défendants are the owners of the remaining one-fourth interest
and were impleaded because they declined to join with the complain-
ant. No Personal claim is made against them. The patent expired
April 25, 1882. Two défenses are interposed upon the mérita. The
défendant insists — First, that the patent is void for want of utility;
«ecomf, that he bas not infringed.
324 FEDEBAL BEFOBTEB,
1. Was the invention useful within the meaiiing of the statute?
In order to answer the question in favor of the défendant it must be
determined that it possessed no utility whatever. If it was useful in
any degree, no matter how infinitésimal, the court would not be justi-
fied in declaring the patent void. Lowell v. Lewis, 1 Mason, 183,
186; Earle v. Sawyer, 4 Mason, 1, 6; Seymour v. Osborne, 11 Wall.
516, 549 ; WUbur v. Beecher, 2 Blatchf. 132, 137; Lehnbeuier v. Holt-
haus, 106 U. S. 94; BeU v. Daniels, 1 Fisher, 375; Shaw v. Lead Go.
11 Fed. Eep. 711; Wkeeler v. Reaper Co. 10 Blatchf. 189; Vance v.
Campbell, 1 Fisher, 485; Sim. Pat. 92, 93; Walk. Pat, 52, 53,
Tested by this rule it cannot be said that the patent was void for
want of utility.
In addition to the presumption arising from the patent itself , there
is évidence that the patented process worked with greater rapidity and
produced a larger quantity of soap from the saine amount of material
than the methods formerly used, One of the witnesses testified that
by the new process the work of three days could be accomplished in
one, and the principal witness for the défense admits that the yield
is slightly more than by "the open-kettle process," If the court were
required to détermine on this proof which of the two methods referred
to is the better, it is not improbable that it would hâve to conclude
that the weight of évidence is decidedly in favor of the older process.
But such is not the question.
If the défendant is right in his contention that no merchantable
article could be manufactured by the use of the patented process, he
will bave little difficulty in convincing the master that the award of
damages to the complainant should be characterized by unusual fru-
gality. To quote from Walk. Pat,, supra:
"Patents are never held to be void for want of utility, merely because the
things covered by them perform their functions but poorly. In such cases no
harm results to the public from the exclusive right, because few will use the
invention, and because tliose who do use it without permission, will seldom
or never be obliged to pay for that use, anything beyond the small beneflt they
may really hâve realized therefrom."
2. Didthedefendantinfringe? Itisadmittedthatfor severalmonths
. the patented machine was used in defendant's factory, but he insists
that he had the right to use it by reason of his contract with M. B.
Sherwood, Jr., and Sherwood's contract with the complainant. On
the ninth of June, 1873, the complainant granted to Sherwood a li-
cense, known as a "shop right," to operate the patented process at
Buffalo, and at ail times to associate with him such party or parties
as he might désire. In June, 1878, Sherwood, by a written instru-
ment, agreed to deliver to the défendant a bill of sale of ail the pat-
ented machinery, etc., used in making soap, and give him the right
to use it in Erie connty so far as he had the power to do so. The
considération was the sum of $800, which the défendant agreed to
pay as follows : $100 on the exécution of the instrument, |100 in 30
BEED V. HOIitlDAT. 825
days thereafter, $200 when the profits amounted to that snm, and
the remaining $400 when half the profits reached that amount. It
is unfortunate that at this time the défendant did not obtain a license
from the complainant ; he was doubtless misled as to his rights and
supposed he was purchasing not only the apparatus but the right to
operate it. The court, however, must construe the contract accord-
ing to its trae légal import. Sherwood could, of course, convey no
more than he himself possessed. What he possessed was a "shop
right" for Buffalo, a mère personal license. It was not assignable
and gare him no right to authorize others to use the process, except
in the manner expressly stipulated. Rubber Co. v. Goodyear, 9 Wall.
788; Troy Fact. v. Corning, lé How. 193; Searls v. Bouton, 12 Fed.
Ebp. 140. After the agreement was execated the machine and fixtures
were owned by the défendant. They were operated in his place of
business. Sherwood had no title to them; he was not a partner of
the défendant or associated in business with him in any légal sensé.
His only interest was to see that the défendant paid him the $800
pursuant to the terms of the contract. Upon this proof I am con-
strained to hold that the défendant bas infringed.
The other défenses of a technical character bave been carefuUyex-
amined but it is thought that none of them are well founded.
It follows that there must be a decree for the complainant with a
référence to a master.
Eeed and another v. Holliday.
(Gireuit Court, W. D. Pennsylvania. January 31, 1884.)
1. Copyright— AcT op CoNaBEBS.
The act of congreas secures to the proprîetor of a copyright the " soie liberty "
of printing, etc., and vending the copyrighted book, and this is inconsisteat
with a right in any other person to print and vend material and valuable por-
tions of said work taken Verbatim therefrom.
2. Bamb — Inpringbmbnt—Text- Bocks — Kby for Use of Tbachbks.
A key, purporting to be for the use of teachers, to copyrighted text-booka
which contain an original method by which instruction in the Bnglish lan-
guage is made interesting and effective by the use of sentences formedinto dia-
grams under certain ruies and principles of analysis, in which key are tran-
scribed from the original works, diagraïus, and also ail the lesson-seatenoes
arrangea la diagrams according to said rules, is an infringement of the copy-
right.
3. Samb— In junotion-^What Mitbt be Shown.
Upon an application for an injunction to restrsin infringement, it is not
necessary to show that the piratical work is a substitute for the original.
4. Samb— Intention.
Intention is a matter of no moment if infringement otherwise appears.
5. Samb— iNJtrNCTroN— When Gbantbd.
If a plaintiff shows infringement of his copyright the court will grant an in-
junction without proof of actual damage.
326 FEDBBÀIi BEFOBTEB.
- In Equity. r <S«r motion for prelimioary injunotion,
fP". F. McCûok for complainants.
Wm. JBiafceZj/ for défendant.
AcHESON, J. The plaintiffs are the proprietors of the copyright — -
secnred to them according to the provisionB of the act of congress —
of two text-books, for the use of, schoola, of which they are the joint
authors and compilera, entitled "Graded Lessons in Engliah" and
"Higher Lessons in English," which contain an original method by
which instruction in the English language is made interesting and
effective by the use of sentences formed into diagrams under certain
rulea and principles of analysia within the easy compréhension of pu-
pils. The gênerai method employed is the arrangement of a single ,
sentence in each leason in the form of a diagram, and it is required
of the pupils that a number of other sentences contained in each lea-
son shall be written out by them in the form of diagrams in aceord-
ance with the laws of the English language as laid down, explained,
and amplified in said works. It isshown that thèse text-books hâve
been favorably received and extensively used by practical educators
in différent parts of the country, and that the sales thereof hâve been
large and remunerative to the plaintiffs, The défendant bas pub-
lished, exposed to sale, and sold, and continues so to do, a work call-
ed "A Teacher's Manual to accompany Eeed & Kellogg's English
Lessons, as prepared by Eobert P. Solliday." This work purports
to be a key to the plaintiffs' text-books, for the use of teachers and
private students. It is a volume of 236 pages, (inclading préface,
remarks, and index,) of which 188 pages consist of sentences formed
into diagrams. Forty of thèse diagrams, forming a distinguishing
feature and characteristic of the plaintiffs' said works, are exact cop-
ies therefrom, and the remainder are made up by transcribing from
the plaintiffs' works literally, and in the order in which they there
appear, the lesson-sentences composed or selected by the plaintiffs,
and arranging thèse sentences in diagrams upon the principles and
under the rulea laid down by the plaintiffs in their above-named
^orks.
The défendant ahows that teaching grammar with the aid of dia-
grams did not originate with the plaintiffs, and that the System ap-
pears in works anterior to theirs; for example, in "Burtt's Practical
English Grammar" and "Clark's Practical Grammar." This is not
controverted. Ail that the plaintiffs claim is that the particular.
method set forth and explained in their works is original. But the
défendant has not contented himself with copying the plaintiff's dia-
grams merely. He has appropriated bodily the lesson-sentences
composed or compiled by them, and which constitute substantial
parts of their Works. True, the défendant has not copied the whole,
and perhapa not the larger portion, of either of the works of the
plaintiffs. He has, however, incorporated in his book material por-
tions of each, and this constitutes infringement, {Folsom v. Marsh,
EEÈd' V. Hû'LLifiAY. 327
2 Story, 100 ; Greene v. Bishop, 1 Cliff. 186,) unIesB the défendant
can juatify himself upon some principle consistent with the entirety
of ownership which the author has in his copyright. This the dé-
fendant attempts to do. He allèges that his book is not intended to
supersede the plaintifs' work, or to infringe their copyright; that it
is a mère key to accompany the plaintiffs' text-books, and to be used
in connection therewith ; and that in faot it does not supersede tbem.
Intention, however, is amatter of no momeiit if infringement other-
wise appears. Roworth v. Wilkes, 1 Camp. 98; McLean v. Fleming,
96 U. S. 245. Nor is it necessary to show, upôn an application for
an injunction to restrain infringement, that the violation of the copy-
right is 80 extensive that the piratical work is a substitute for the
original work. Bohn v. Bogtie, 10 Jur. 420. The act of congress
secures to the proprietor of the copyright the "sole libeirty" of print-
ing, etc., and vending the copyrighted book, and this certainly is in-
consistent with a right in any other person to print aiid vend mate-
rial and valuable proportions of such work taken Verbatim theieîrom,
What différence^ then, does it make that the defendant's work takes
the form of a key tô the plaintiffs' text'books? By what right m ay
he thus appropriate the fruits of the plaintiffs' talents, labors, and
industry ? Granted that the défendant has produced a serviceable
key to aid the instructor. This no more entitles him to take to him-
self, and publish the literary matter covered by the plaintiffs' copy-
right, than does the fact tha|; a, second inventor bas made an im-
provèment on a patented macHiile give Mm the right to use such
machiîie during the life of the first patent.
The défendant, in opposition to the présent motion, assérts, furthér,
that the plaintiffs sustain no damages by rôason of the sale of his
work, but, on the contrary, are benefited thereby, as the key promotes
the sale of the original works._ The opinion of at least , one witness
boincideS with this theory. l^iit the plaintiffs entértain à very différ-
ent view of the effect of the sale of the key, and they allège that it
will prove highly detrimental to them in this, that the fact that a full
key to ail the work to be done by the pupils using thesô tèxt-books ip
on public sale, and within reach of the pupils, will impair the popu-
larity, usefulness, and' sale of said works. I confess tÉat this strikes
me as a conséquence very likely to follow the gênerai sale of the de-
fendant's book. But, at any raté, the défendant has nô'right to sub-
ject the plaintiffs to such risk. . Moreover, if à plaintiff shows in-
fringement of his copyright, the court will grant an injunction
without proof of actual damage. Tinsley v. Lacy, 32 L. J. Ch. 536.
The motion for a preliminary injunction must prevail.
Let a decree therefor be drawn.
328 fsdbbal bepobteb.
Thb St. Lawrence.
{District Court, W. D. Penmylmnia. January 23, 1884.)
1. WhaHVES— RiGHT TO MooB Vbssbls.
ïlie light of mooring vessels at public wharves Is as mucli to be protected
as that of navigation itself, but it is tô be exercised with due regard to tlie
rights of passing vessels, and any unnecessary encroachment upon the chan-
nel-way wbich greatly imperils passing craft i^ without justiflcation.
a. Sa-me— Position op 8tbam-Boat.
A steam-boat lying at a wliarf-boat at the public landing of Pittsburgh,
threw lier stern eut in the way of a descending coal-tow, when she might hâve
lain broadside to the wharf-boat, and thus afflorded a sufBcient passage-way
for the tow-boat and tow. A collision occuiring, hdd, that the steam-boat
was answerable to the o\vner of a coal-boat thereby lost.
3. Same — OoLiiisioîî WITH Tow.
In case of a collision between a descending coal-tow and avessel wrongfully
obstructing the channel-way, the previous fault of another vessel, in striliing
and throwing out of shape the coal-tow, is not to be imputed to the tow-boat,
if the latter were free from blâme.
4. Samb — MuTûAii Fault — Damages Recovbbablb from Eititeb Vessbi*
An innocent party who sustains loss by reason of the concurrent négligence
of two vessels may pursue and recover the «atire damages from eithei wroug-
doer.
In Admiralty.
Knox d Reed, for libelanta.
Bwrton é Son, for respondents.
AcHBSON, J. The St. Lawrence, a steamer plyîng in the Pittshurgli
and Cincinnati trade, early on the morning of March 31, 1883, came
into the port of Pittsburgh, landing at the Phillips -wharf-boat, which
lies at the public wharf, her usual place for receiving and discharg-
ing cargo and passengers. This wharf-boat is at the north shore of
the Monongahela river, 840 feet below the Smithfield Street bridge.
The head of the St. Lawrence was to the wharf-boat, and she lay
quartering out in the river, her stem projecting into the coal-boat
channel. A barge at the lower end and two tow-boats immediately
above the wharf-boat prevented the St. Lawrence, upon her arrivai,
from getting broadside against the wharf-boat. Andrew Hazlett, the
mate of the St. Lawrence, testifies, however, that thèse tow-boats
moved away between 8 and 9 o'clock that morning. The Mononga-
hela river was rapidly rising to a coal-boat stage, when the St. Law-
rence came into port, and by 7 o'clock had reached a stage of 9 feet,
and by 10 o'clock that morning had reached 11 feet. The rise
was altogether out of the Monongahela river, and hence the current
was exceedingly rapid. Descending coal-tows customarily used the
span between the first and second old piers of the Smithfield Street
bridge, and at that particular time it was the only open span, the
others being then closed by piles and trestle-work, the bridge being
in process of reconstruction. The "Eobinson fleet" of coal-boats, etc.,
oonsisting of upwards of 40 pièces, lay in the river moored to the
THE ST. LiWKENOE. 329
ihità pier of tlie bridge, and extending down past the St. Lawrence,
or nearly so. This fleet, whioh had been tbere for some time, greatly
narrowed tbe passage-way for descending tows. Tha St. Lawrence
still further contracted tbis passage-way, and ber projecting position
rednced tbe space between ber and the fleet to 200 feet or lésa. From
tbe Smithfield Street bridge down to a point below tbe Pbillips wbarf-
boat, tbe natural direction of tbe current ia in towards tbe nortb shore,
and tbis tendency, on the occasion in question, was ratber increased
by tbe obstruction at tbe bridge already mentioned and the Eobiiison
fleet. It is sbown tbat on a Monongabela rise, tbe proper method
for a tow-boat witb a coal-tow, to run tbis part of tbe river, is by flank-
ing ; i. e., setting tbe tow-boat quartering witb ber bead down stream
and in towards the nortb sbore, tben backing against tbe cross cur-
rent and floating downward. Tbis of course requires more space tban
does steering or running bead on.
Under ail tbe évidence, I find without besitation tbat the St. Law-
rence, in tbe quartering position in which sbe lay, ocoupied and was
an obstruction to a considérable portion of tbe working cbannel used
by tow-boats baving coal-tows in charge, and which in the then con-
dition of affairs it was necessary for them to use, and tbat ber posi-
tion was one of great péril botb to herself and descending tows. This
is substantiated not only by tbe gênerai testimony but by wbat act-
ually occurred in the space of a very few hours. Hazlett, the mate,
States that tbe St. Lawrence was struck by the tow-boats Sam Eob-
inson and the Tide, (be tbinks,) and it is in proof tbat sbe was also
struck by the tow-boat Blackmore, and ail this before tbe disaster out
of which this suit grew. Between 9 and 10 6'clock tbat morning
James T. Fawcett went to tbe St. Lawrence and warned ber master,
Capt. List, tbat she was lying right in tbe cbannel, endangering botb
herself and descending coal-tows ; and immediately af ter tbe Black-
more struck her (which it would seem was about balf an bour before
the disaster under investigation) J. Sharp McDonald gave Capt. List
a like warning and advised him to take bis boat altogether away from
that place.
In anticipation of a coal-boat rise tbe libelants had employed
the tow-boat Abe Hays to take certain coal-boats belonging to them
from tbe Tenth Street bridge down to tbe foot of Brunot's island,
tbere to be made up in a tow for Louisville. During the forenoon of
March 31st, tbe Abe Hays took in charge one of thèse coal-boats and
proceeded with it down stream. When she had reached a point some
200 feet above tbe Smithfield Street bridge, the tow-boat Acorn struck
her, but doing her no serious damage, and not injuring tbe coal-boat.
The effect of tbe stroke was to put the Abe Hays somewbat out of
shape to run the bridge, but ber pilot states sbe had reeovered her-
self when she passed under the bridge; and I think the évidence fa-
vors the conclusion that she was kept in proper position and rigbtly
handled below the bridge, and throughout was free from fault. Never-
s 30 FEDERAL EEPORTEB.
theless the head of her coal-boat struck the wLeel, or immediaiely
forward of the wheel, of the St. Lawrence, passing under her guard.
The eSeet of the collision was to bo injure the coal-boat that it sànk
in a f ew minutes, and, "with its cargo of coal, beoame a total Iosb. Im-
mediately after this collision the St. Lawrence changea her position,
moving up broadside against the wharf -boat. I am well satisfied
from the proofs that had she taken this position sooner, the Abe
Hays and her tow would hâve passed down safely and this loss hâve
been avoided.,
The collision occurred about 11 o'clock a. m. Now, it clearly ap-
pears that at an earlier hour the tow-boats whioh lay above the
■wharf -boat hâd moved away, and there was nothing to prevent the
St. Lawrence firom taking, before the catastrophe, the position she
took afterwards. Indeed, between thé time the Blackmore struck her
and the approach of the Abe JEïays shé might hâve made this change
in her position. That she did not sooner do so — especially in view of
the collisions which had already occurred, and the warnings given
her master— was entirely inexcusable.
Experienced river men testify tha.t, under the peculiar circuni-
stances then existing, ordinafy prudence requîred the St. Lawrence
to avoid, or, go away from the Phillips whârf-boat altogether, and
take a position at the eity wharf, lower down, which the évidence
indicates was available to her. Coal-boat rises, as îs well known, are
often of short duratioh, and the river must be "taken at the flood"
by outgoing . coal-tows. There is therefore great force in the argu-
ment urged by the libelants' counsel, that it was the duty of the St.
Lawrence to yield the whole space between the wharf-boat and the
Eobinson fleet — ^none too large for thé requirements of the occasion
— to descending tows, (^The Exchange, 10 Blatchf. 168,) butit is not
necessary to décide whether or not such was her duty.
The culpability which makes the St. Lawrence justly answerable
to the libelants' for the loss of their property, consisted in her un-
necessarily encroaohîng upon the ordinary coal-boat channel by
throwing her stem out in the way of deseendiiig tows, when she might
bave lain broadside to the wharf-boat, and thus afforded the Abe
Hays a sufficient passage-way.
Ùndoubtedly the mooring of vessels at publie wharves is a well
reeognized right, as much to be protected by the law as that of navi-
gation itseïf. But it is to be exercised with due regard to the rights
of passing vessels. An unnecessary éncroachment upon the chan-
nel-way, which greatly imperils passing craft, is without justifica-
tion. It may hâve been more convenient to the St. Lawrence to re-
çoive and discharge her cargo with her bow to the wharf-boat, but
this is a poor excuse for putting in needless jeopardy descending
tows.
It is, however, asserted that the Abe Hays had not suflScient power
to control and manage her tow, in the then stage of the river and
•THE ST. LAWBëtJèB. 331
strong current, and that it was négligence to employ her for the
service she undertobk. But this défense, I think, is not made out.
This employaient was her ordinary business, and while she was less
powerf ul than some dther tow-boats, she was reasonably fit for the
work. On this occaBion she had in chargé but a single coal-boat,
which she had sufficient powerto manage had the channel-way which
she had a right to use been unobstructed. It is quite true that after
she had passed the Smithfield Street bridge, (where her pilot first
diseovered the projecting position of the St. Lawrence,) she had not
power to back up stream, and thus avoid the danger. But tow-boats
with coal-tows descendiug the Monongahela and Ohio rivers are not
expected, and ordinarily hâve not the ability, to.back up stream, or
even to hold their tows against a strong current. Fawcett V. The L.
W, Morgan, 6 Fbd. Ebp. 200. The cûaJ, is. taken out on freshets, the
tow-boat guiding the tow.
It is further claimed on the part of the défense that the Abe Hays,
having gone up the river at about 8 6'clock on the morhing of March
31st, in sight of the place where the St. Lawrence lay, was chargea-
ble with notice of her position, and therefore was in fault in coming
down at ail. But the Abe Hays went up without any tow, and the
St. Lawrence was not in her way. Her master and pilot state that
they do not remember to hâve observed the St. Lawrence ; but if they
did, they may well bave supposed that she had just corne into port
or was about to leave. At any rate, they were not bound to assume
that she would continue to lié in her thèn position for several hours,
and after coal-tdws had commenced coming down.
Again, it is insisted that the disaster was brought about by the pre-
vious collision between the Acom and Abe Hayes. The évidence,
however, leads me to a différent cbiiclusioû. Moreover, in that mat-
ter the Acom was exclusively to blâme. Therefore, if her stroké did
put the Abe Hays out of shape and thus contributed to the misfor-
tnne, her fault is not to be imputed to the innocent vessel. .
But did it appear that the Abe Hays was guilty of contributory
négligence, what then? Thè libelants were not her owners nor an-
swerable for her misconduct. Now, it is & recognized principle of
law that an innocent party who sustainô a loss by reason of the con-
current négligence of two vessels may pursue and reeovér the entire
damage from either wrong-doer. The Atlas, 93 U. S. 302 ; The Fran-
conia, 16 Fkd. Rep. 149. And herein is to be found the answer to
the suggestion (if true) that the Bobinson fleet wrongfuily uarrowed
the coal-boat ohannel. '
The évidence shows thé vaine per bushel of the coal to be as statéd
in the libel, aUd as to qnality there seems to be no contiroYersy.
Let a decree be drawn in favbr of the libelants for tliiè ainou^it of
their elaim, with interest from March 31, 1883, and costs.
332 fBDSBAL BSFOSTGB.
The Feank C. Babkbb, Her Tackle, etc.
[District Court, B. New Jersey. February 2, 1884.)
1. Seamek— Desbrtion — Dtscharge.
In conséquence of a disagreement between the master of a vessel and his sea-
men about the amount of wages due them, the mailners were ordered to go to
work or go on shore. They agreed to go aahore if he would give them orders
for their wages, stating that they would regard themselves in that case as dis-
charged. The master gave them the orders, and the sailors left the vessel.
HM, that they were discharged, and were not to be looked on as deserters.
2. Entirb Contract— Dischabge — Rbcovbht dp Wages Earnkd.
Upon the wrongful dischartçe of a workman engagea under an entire con-
tract, he is entitlod to recover bis wages during actual service.
3. Statutory Rbmedy'not Exclusive.
The remedy aflorded seamea by sections 4546 and 4547 of the Revised Stat-
utes is not exclusive, and the usual process in rem against the vessel is slill open
to them.
In Admiralty. Libel in rem for wages.
Bedle, Muirkeid é McGee, for libelants.
E, A. Ransom, for respondents.
NrxoN, J. A careful reading of the volumînoua testimony in thÎ8
case sbows that the unfortunate misunderstanding between the own-
ers and the crew, leading to the présent controversies, bas arisen from
the double-faced dealing of the master, Raynor. It must be borne in
mind that seamencf this class are generally ignorant ; and are often
imposed on, and that such imposition makes them suspicions. The
libelants were hired at $25 a month and a bonus of three cents for
every 1,000 fish caught during the season. There seems to bave been
no very definite arrangement when their wages were to be payable.
The owners testify what their understanding was, and what instruc-
tions they gave to the master in regard to the biring of the crew.
But there is no évidence that any hint was given to the libelants
that the payment of three cents per tbousand on the fish taken was
contingent on their remaining to the end of the season, or that no
payment was to be made on account until the season ended, or that
the men would be expected to hâve deducted from their wages ail that
was expended for grub aboyé three dollars a week. On the contrary,
I think it is a fair inference, from the testimony, that the libelants
thought at the time of their hiring that their wages would be paid
monthly, and the bonus, or ^sh-money, as it was earned, and as they
desired to bave it.
It appears that some of the crew had been epaployed in the same
business the previous year by the same master and no suggestion
was then. DQjf^e that they Typuld reçoive not|aing çii! account of the
bpniis.iintil t^e end of the season'^ wor]$, oy that they would be chargea
anything OU; account of their grub, whatever the cost of providing it
might be. But after the season's work was fully under way news
came to the ears of the libelants that thèse new terms were to be im-
THE FBANE 0. BABEEB. 333
posed. In the controversy over it whioh followed, the master seems
to hâve taken aides with the men, when with them, and with the
owners when away from the crew. Abont the first of July some of
the li bêlants went to the master for payment on account of the bonus, or
fish money, earned, as they had done the year before. It was agreed
that they would estimate the number caught to that date at 500,000.
But when the owners were applied to they refused to pay anything,
stating for the first time that ail eamings would be withheld till the
close of the season. This was followed shortly afterwards with the
other claim in regard to the expenses for the grub. They at once
demanded, both of the master and of the owners, that thèse ques-
tions, and especially the latter, charging them for any part of their
board should be definitely settled. The owners and master were
wrong in attempting to incorporate new terms into the contract for
hiring without the consent of the libelants, and the latter were right
in insisting upon an amicable adjustment of the différences, or upon
a séparation.
The libelants were peremptorily told to go to work or to go ashore.
They agreed to the latter if they were paid ofif in full to date. BUiott
says that, when he was ordered to go ashore, he replied that he would
go if the captain would give him an order for his money. Upon re-
ceiving his order the other men asked for theirs, also, and they were
given. Pages 74, 75. The master assented to the payment, and gave
them orders upon the owners to that effect. The orders were taken
to the owners, who, on a subséquent day, handed to the captain, for
them, checks for the month's wages then due, but not including their
eamings for the number of fish caught. The libelants found that the
checks were drawn ^o their order, and in full for ail claimsi; They
declined to use them, and filed libels forthwith for the wages and fish
money due to the date of the master's orders. The proctor of the re-
spondents claims that this was a désertion, and the libelants, that it
was a discbarge. Were the libelants discharged ? This question is
often determined affirmatively by circumstances, in the absence of
direct proof. Granon v. Hartshorne, Blatchf. & Hi 458; The Da/vid
Faust, 1 Ben. 187. The proof is clear that the libelants consid^red
themselves discharged by the act of the master. While they were
parleying in regard to being charged for the expenses of their grub,
exceeding three dollars a week, and properly insisting that the ques-
tion should be settled without fùrther delay, and whèn the master or-
dered them to go to work or go ashore, they agreed to the latter, pro-
vided he would give them an order upon the owners for what was due
to them, and at the same time stated that they should look upon such
an order as a discharge. With express knowledge as to how the libel-
ants regarded the proceeding, he gave them the order for the wages
due, with which they went to the owners for payment. I must hold
the giving of such an order, uuder the circumstances, as a discharge
of the libelants.
334 fEDEBAL BKFOBTEB.
This view of the case renders it tinimportant to détermine whether
the men were shipped for the season or from month to month, and
whether the bonus was payable at the end of the season or by the
month. If they were discharged by the master they should receive
what they had earned up to the date of the discharge, whether due
under the original contract or not. But it may be conceded that I
am in error in regard to the discharge of the libelants, and still they
are entitled to a decree. The respondents testify to the instructions
whioh they gave to the master in regard to hirlng the crew. But the
master was examined, ànd he does not prétend to hâve carried them
out in hia negotiations with the men. Not one of them was told that
the bonus was to be withheld until the end of the season, or that any
déductions would be made from their wages for board if the expense
exceeded three dollars per week. On the contrary, the testimony of
Elliott is uncontradicted that during the previous yeara he had been
in their employ, and that the wa.ge8 were paid monthly, and the bonus
as it was earned and whenever it was asked for. On page 29 of his
évidence he States that "when the hiring took place he said to the mas-
ter : "I suppose wè get the monthly pay the same we did last year,
èvery month ?" " Yea, " said he. "And the bonus when we want it ?"
saya I ; says he, " Yes." While I am not disposed to wholly justity the
conduot of the men, great allowahce should be made for them under
the provocation of an attempt to impose upon them new and unex-
pected obstacles to receiving their hàrd-earned wages. The proctor of
the respondents at the hearing claimed that three of the libels should
be dismissed because they were filed within 10 days after the alleged
diaoharge of the libelants. He contended that the remedy afforded
by sections 4546 and 4547 of the Eevised Statures was exclusive, and
that the provision therein made for an application to a judge, eom-
missioner, or justice of the peace, must be observed in ail cases except
where the vessel was about to go out of the jurisdiction of the court.
But this ie not the construction which the courts hâve ordinarilygiven
to thèse sections. It is held that the remedy is cumulative and not
exclusive, and that, notwithstânding thèse provisions, the courts of ad-
miralty remain open to seamen for the usual process inrewi against the
vessel whenever they prefer to pursue that course, Murray v. Ferry-
fcoat, 2 Fbd. Eep. 88 ; The William JarviSySnpt. 'Dec. i85; TheM.W.
Wright, 1 Brown, Adm. 290; The Waverly, 7 Biss. 465.
Let a decree be entered for the libelants, and a référence, unless
the parties oan agrée from the testimony already taken upon the
amount of wages due.
THB SAM^Y. 335
The Salit.*
Wistriet Court, SI. D. Pennsylvania. December 24, 1883.)
AnMiRALTY— Collision Betwbbk Floating BaKgb and Bailing Vbsbhl— Ddtt
ON MKETINfl IN NaRBOW STKEAM.
Wliere a barge, floating with the tide up a narrow creek, had her bpw st uck
in rubbish near tlie bank and her atern swungacrosa the creek by the tide, and
a collision with a sloop under sail coming down the creek might hâve been
avoided by the man on the barge reversing his pôle sq as to turn thestern com-
pletely around, hdd, the barge was in fault in holding her stern against the
tide and thereby making a collision inévitable.
In Admiralty. Hearing on libel, answer and proofs.
Libel by the owners of the canal barge Henry S. Pence, against the
sloop Sally. The libelants claimed ,that cfn July 18, 1883, while the
barge Henry S. Pence was floating up the Woodbury creek, and had
proceeded about half a mile from its mouth, she was struck upon the
starboard side by the sloop Sally, although the sloop had ample time
and suf&cient water to go astern of the barge. The respondent con-
tended that as the sloop, proeeeding do-wn the creek, rounded a curve,
the barge was seen about 100 yards distant, directlyacross the creek,
floating up with the tide; that the barge was insufficiently and neg-
ligently manned by only one man, who was using a pôle on her star-
board side near the stem, and paid no attention to the approach of
the sloop, although several men upon the shore called out to him.
The sloop at once starboarded her wheel, and tried to go under the
barge's stern expecting that the barge would allow her stern to drift
up, but the man on the barge held her stern with the pôle, making a
collision inévitable.
JoAra 4. Toomej/, for libelant. '
Edward F. Pugh, for respondent.
BuTLEE, J. The libel must be dismissed. Whether the barge was
sufficiently manned, and, if not, whether this had anything to do with
the resuit, need not be considered. Her position in the creek, bar-
ring the channel, was improper and inexcusable. Her bow appears to
hâve been interfered with by rubbish at the side of the stream, and
her stern swung around, under the influence of the tide. I do not
think the wind had anything to do with it. Whether it had or not
does not seem, however, material. Her stern would hâve gone com-
pletely around if her master had not prevented it. Desiring to right
his boat, he held her stern against the tide with his pôle. This was
proper at the time he commenced it, and doubtless would soon hâve
relie ved the bow and turned it up stream. His mistake, however,
was in continuing it after the sloop came into view. Had he reversed
his pôle and added his strength to the force of the tide, he would bave
opened the channel before the sloop reached him. As it was his duty
iReported by Albert B. Guilbert, Esq., of the Philadelphia bar.
336 FEDKBAL BEFOBTEB.
io do this, the sloop was justified in supposîng he would, and going
torward. Seeing that he still held his boat across the stream he was
cautioned to let her stern go, and every proper effort made to arrest
the sloop's headway. He persisted, however, in his foUy, and was
struck. That the accident oocurred in this way, and from this cause,
seems very clear from the évidence on both sides. Directly after, the
master of the barge repeatedly admitted his f ault, and exonerated the
sloop.
 decree must be entered dismissingihe libel, with costs.
Thb Ashland.*
{Oircuit Cotirt, E. D. Louitiana. December, 1883.)
1. Peacticb— Appeal— Rbmittitub.
Where a jurtgment was rendered by the district court against claimants for
au àppealable amount, and thereafter proctor for libelants ofCered to enter a
remittitv/r of somachof the judgment as to reduce it below the appealable
amount, and the district court refused to allow the remittitur, heÛ, that it
was within the discrétion of the district judge to allow or refuse to allow the
remittitur to be entered.
Ina. Vo. V. NiehoU, 3 8up. Ct. Rep. 120,.followed.
2. Same.
Â. remittitur cornes too late when oSered to be entered after an appeal has
been allowed.
On Motion to Dismiss Appeal in Admiralty.
R. King Cutler, for libelants.
A. G. Brice, Joseph P. Hornor, and F. W. Baker, for claimant.
Pardee, J. It appears from the transcript that on June 7, 1883,
the judgment was rendered in the district court for $51. On the
same day a motion for appeal was made and allowed. June 9th a
bond was given and accepted. June llth the decree was signed by
the district judge, and on the same day a remittitwroî one dollar "was
filed, but not entered on the minutes, nor allowed by the court."
The motion to dismiss must be overruled and refused because (1) the
remittitur was not allowed by the court. Alabama Gold Life Ins. Go.
V. Nichols, S Bup. Ct. Eep. 120. (2) It came too late after an appeal
was allowed and perfected.
Order accordingly.
1 Beported hj Joseph P. Hornor, Esq., of the New Orléans bar.
DOTY V. JBWETT. 837
DoTï and anotùer ». Jbwbtt and others.
Circuit Court, N. D, New York. February 16, 1884.)
1. Jtjkisdiction op Ciecuit Coukts— Rbtibw op PROoEBDiNas IN District Court
— Waiver op Jury.
The circuit courts of the United Statea hâve no jurisdiction to review any
question raised by a bill of exceptions in an action at law in a district court,
where the faots hâve been found witliout the aid of a jury, since there is no
warrant in the statutes for the waiver of a jury in the district courts.
2. Bamb — AppEAii — Bill in Equity — Action at iiAW — Wkit of Erbob.
Procoedings in equity in the district courts can be reviewed in the circuit
courts only upon appeal, and not upon writ of error. If a writ of error is
taken, the° court of review can only treat the case as an action at law.
3. Bamb — Limited bt Btattith.
The circuit court h»s no jurisdiction to revise judgments of the district court
in any other way than the statutes prescribe; and no agreement of the parties
can give it such authority.
At Law.
Thomas Corlett, for plaintifts in error.
Ruger, Jenney, Marshall é Brooks, for défendants in error.
Blatchford, Justice. This is an action brought in the district
court of the United States for the Northern district of Ne-w York, by
the plaintiffs in error against the défendants in error. The first plead-
ings of the plaintiSs calls itself a complaint and is sworn to as a com-
plaint. It sets forth the copartnership of Albert Jewett and William
Johnson, as Jewett & Johnson; an indebtedness of the firin to the
Phœnix Mills, a corporation, of $6,208.51, for goods sold and monej's
advaneed; the adjudication of the corporation as a bankrupt; the
appointment of the plaintiffs and said Johnson as its assignées; an
assignment to them; the death of Johnson ; the insolvency of Jewett ;
the want of copartnership assets of Jewett & Johnson to pay any part
of said debt ; the absence of any other remedy for the plaintiffs to
collect the debt, except against the estate of Johnson; the granting
of letters of administration on his estate to the défendants Angeline
C. Johnson and Stephen B. Johnson; the non-payment of any of the
debt; and its existence as a debt against the estate of Johnson, en-
forceable by the plaintiffs. The prayer is for judgment against Jew-
ett, surviving partner, and against the other défendants as admin-
istratrix and administrator, for $6,208.51, with interest. Jewett put
in a separate answer containing three distinct défenses, to which the
plaintiff put in a replication, which treated the answer as consisting
of three pleas, and itself contained two separate pleadings, each of
which concluded to the country. The other défendants put in a
separate answer containing five separate défenses, to which the plain-
tiffs put in a replication, which treated the answer as consisting of
five pleas, and itself contained five separate pleadings, each of which
concluded to the country. Each of the replications speaks of the
plaintiffs' initial pleading as a "déclaration."
v.l9,no.6— 22
338 7BDBBAL BBFOBTQB.
The case is before this court on a writ of error. The record shows
that the action was triedby consent, in the district court, before that
court held bj the district judge, without a jury; that a jury was duly
waived by the parties; that the judge heard évidence, both parties
appearing; that he made certain décisions to which the plaintiffs çx-
cepted; and that he dismissed the complaint on the ground 6f a bar
by a statu te of limitations. A bill of exceptions was signed, and a
judgment was entered dismissing the complaint on the merits, and
awarding costs to the défendants. The plaintiffs brought a writ of er-
ror. No other questions are sought to be reviewed, except those arising
on the bill of exceptions. It was held by this court, in Town of Lyons
V. Lyons Nat. Bank, 19 Blatchf. G. C. 279,^ that no question arising
on a bill of exceptions could be considered by this court on a writ of
error to the district court, in an action at law, where the facts were
found by the district court 'rt'ithout a jury. The question was there
fully examined, and the f ollowing authorities were cited and reviewed :
Guild V. Frontin, 18 How. 135; Suydam v. Williamgon, 20 How. 432;
Kelsey v. Forsyth, 21 How. 85; Campbell v. Boyreau, Id. 223; U. S.
V. lôHogsheads, 5 Blatchf . G. C. 106; Blair x. Allen, 3 Dill. 101 ; Wear
V. Mayer, 2 McGrary, 172; [S. C. 6 Fed. Eep. 658.] It was held
that the question is one of the power and authority of the court, and
is not such a question of practice, or such a form or mode of proceed-
ing, as is embraced in section 914 of the Bevised Statutes, which
adopts for the circuit and district courts of the United States, in suits
at law, the practice of the state courts ; and that there is nothing in
section 914 which extends or affects the power of this court, as it be-
fore existed, on a writ of error to the district court. The want of
power consists in this: that section 566 of the Eevised Statutes re-
quires that issues of faet, in actions at law in the district courts, shall
be tried by a jury, and there is no statutory provision for the waiver
of a trial by jury in such actions, and no spécial statutory power
conferred- on this court to consider. any question raised by a bill of
exceptions in such an action not tried by a jury.
It is urged for the plaintiffs in error that in regard to the repré-
sentatives of Johnson the suit is in the nature of a suit in equity, as
the complaint allèges the insolvency of Jewett. The answer to this
is that the plaintiffs, by their pleadiugs, hâve treated the action
throughout as a suit at law. By section 4979 of the Eevised Stat-
utes jurisdictiou is given to the district courts of suits at law and in
equity brought by an assignée in bankruptcy against any person
claiming an adverse interest touching any property or rights of the
bankrupt transférable to or vested in the assignée. Under the rul-
ings of the suprême court in Jenkins v. International Bank, 106 U.
S. 571, [S. G. 2 Sup. Gt. Eep. 1,] the présent suit is either a suit
at law or a suit in equity, within the provisions of section 4979. If
i s. C. 8 Fbd. Rep. 369.
DOîï l?. JEWJÇTT, ,. 839
a suit in equity, it would be commenced by bill, and the proceedings
would be in conformity tothe rulea of equity prâétice established by
the suprême court, as required by gênerai order No. 33 in bankruptcy.
This bas not been done. The plaintiffs, in their replication, call
their own first pleading a déclaration, and the défendants' pleading
pleàs, and their replication consista of five pleadiugs, each of whieh
concludes thus: "and this the said plaintiffs pray may be inquired of
by the country," etc. Moreover, tbey waived a trial by jury, and they
made a bill of exceptions, and they sued out a writ of error, ail
badges of a suit at law, and not of a suit in equity. By section 4980
of the Eevised Statutes it is provided that "appeals may be taken
from the district to the circuit courts in ail cftses in equity, and writs
of error from the circuit courts to the districts courts may be allowed
in cases at law arising under or authorized by this title." The fact of
the taking of a writ of error establishes that this is a case at law, so
far as this court is coneerned. If it were a case in equity, a review
by this court would hâve to be by appeal, in order to give this court
iurisdiction.
It is nrged that the trial by the court took place as it would hâve
done in an equity suit; and that, as the case is one reviewable in one
or the ôther of the two modes, thô objectiotf to the mode may be
waived by tbe other side, and such waiver bas taken place in this
case. Some authorities linder the state praoticô in New York are
referred to. But the question is one of jurisdiction. The agreement
of parties cannot authorize this court to revise a judgment of the
district court in any other mode of proceediûg than that which the
law presoribes, nor can the laws or praotice of a state, in regard to
the proceedings of its own courts, authorize this court ôr the district
court to départ from the modes of prooeeding and rules prescribed
by the actâ of congress. Kehey v. Forsyth, 21\How. 85, 88; Mer-
nil V. Petty, 16 Wall. 338, 347; V.S. v. Emkolt, 105 U. S. 414, 416.
As the district court had jurisdiction of the subject-matter and of
the parties, and as there is no error in the record, and as nothing
found in the bill of exceptions «an be considered, the judgment must
be presnmed to be right, and must be aflSrmed, with costs. CampbêU
V. Boyreau, 21 How. 223, 227; Town of Lyon» v. Lyona Nat^ Bank,
19 Blatohf. C. C. 279, 289; [8. G. 8 Fbd. Eep. 869.]
340 7BI)EBA.L BBfOBTEB.
Mabtin V. BàLDwiN and othera.
'Oircuit Court, D. UcUifornia." February 4, 1884.)
JuRisDicTioN OF Fbdekai. Court— Pbndbxot 01" Cause ih State Court.
Peading a suit in a state court for the partition of lanâ, a court of the United
States having concurrent jurisdiction may refuse to entertain a suit between
the Bame parties or their successors l)y purcliase, pendente lite, whea the issues
and interests involved in the two caues are the same.
The facts are stated in the opinion.
W. S. Woods, for complainant.
Latiner é Morrow, for défendants.
Sawybr, J., (orally.) This is a suit for partition of a ranch, Cam-
ilo Martin bringing the suit against Baldwin and Garvey for parti-
tion, alleging that he owns a certain portion, and that Baldwin and
Garvey own the remaining portions. The plea sets up that W. and
F. W. Temple commenced suit in the district court for the district of
Los Angeles county, against Baldwin, one of the défendants in this
suit, and several other défendants named, being the other owners at
the time, for a partition of this same ranch; that said suit is still
pending in the superior court for the county of Los Angeles ; that it
embraoea the identical object and subject-matter involved in this suit;
that since the commencement of that suit, the plaintifE in this pro-
ceeding, Camilo Martin, has purchased the interest of the Temples,
and now owns the same interest that the Temples did ; that Garvey
has purchased the interest of some of the other défendants in the suit ;
and that Camilo Martin, the complainant in this suit, and Baldwin
hâve also purchased the remaining interest of the other défendants
in the suit, so that novr Martin, Garvey, and Baldwin are owners of
the entire ranch ; that though there are other parties to the former
suit for partition, yet the parties to the présent suit hâve succeeded
to their interests, pendente lite, and are now the only parties in inter-
est ; that the same interests are now involved, the parties to this suit
having purchased in subsequently to the bringing of the former suit
and the filing of notice lis pendens, and are, theref ore, in privity with
those other parties; that this suit involves preoisely the same ques-
tions that the former suit does; and that the judgment or the decree
in the former suit would be binding upon ail the world. Section
1908 of the Code of Civil Procédure says :
"The efEect of a judgment or flnal order in an action or spécial proceeding
before a court or judge of this state, or of the United States, having jurisdic-
tion to pronounce the judgment or order, is as follows: * « * (2) In
other cases, the judgment or order is, in respect to the matter direetly ad-
judged conclusive between the parties and their successors in interest by
title, subséquent to the commencement of the action or spécial proceeding, lit-
igating for the same thing, undrir the same title, and in the same capacity."
Preoisely the same relief is to be had in one sait as in the other,
and the judgment in the ârst suit would be binding upon ail the par-
UAJSTIN V' BALDWIN. .841
ties. It is true that thèse are différent jurisdiotions, that is to say,
one is the jurisdiotioa of the United States and the otiier of the state
court, and in ordinary cases the pending of the suit in one of thèse
tribunals would not abate a suit pending in another. But thèse saits
are for partition of the same land, and the two courts might reach a dif-
férent resuit and there be no error in either proceeding upon which the
judgment could be reversed. The parties would find themselves in a
very embarrassing position if the judgments.should be différent in
the différent courts and both of them be valid. The jurisdiction of
the two courts is concurrent. The proceeding is in the nature of a
proceeding in rem. Where two courts hâve concurrent jurisdiction
in a proceeding in rem, and one court obtains possession of the res,
ordinarily it would be entitled to proceed to judgment without inter-
férence from the other court. Certainly, one court would not be en-
titled to take the res out of the possession of another court of concurrent
jurisdiction, which, in the exercise of its lawful authority, bas obtained
the actual, physical possession of the thjng in suit,' It seems to me
that the same principle should apply to a suit for partition. The
action is local, and the courts, having concurrent jurisdiction, must
necessarily exercise the same territorial jurisdiction, although the
courts œay be courts of différent sorereigntiea. The proceeding be-
ing in the nature of a proceeding in rem, the court fii'st obtaining légal
possession or control of the res ought, by comity at least, if not other-
wise, to be permitted to proceed to an adjudication without interfér-
ence by the other court. As a matter of sound légal discrétion and
comity, I think the court is authorized to abate the suit in this court
on the ground of the pending of the other suit in the state court, even
if the party pleading the matter of abatement is not entitled to hâve
it abated as a matter of strict légal rigbt. The complainant cannot
complain, for he purchased pending the former suit, and the notice
of lis pendens, filed in pursuance of tho statute, informed him of the
condition of the lands. He purchased into a lawsuit in regard to
lands already in the légal control of another court. This court, at
the commencement of that suit, had no jurisdiction whatever of the
case, — the parties being then ail citizens of Galifornia,-r-and com-
plainant took his interest cum onere.
Let the plea be Bustained.
843 rXDKBAli BKPOBTKB.
Bbuce ancl otherB v. Manohbstbb & K. B. B. and otbers.
{CHrcuit Court, D. Nea Hampshire. February 14, 1884.)
i. UonETs OB' Concurrent Jubibdictiôn — JtrEiSDicTioN Actdallt Acquibhid.
Of two courts having concurrent jurisdiction of any matter, the one whose
jurisdiction first attaches acquires exclusive control of ail controversies re-
specting it Involving substantiàlly the saine interests.
2. SAMB — FOBECIiOSUBE OP MORT&AGE ON lÎAILBOAD.
Accordingly, where the suprême court of New Hampshire decreed the fore-
closure of a deed of trust and mortgage of a railroad, and the property was ac-
tuallysold, hdd, that the circuit court of the United Btates could nol enter-
tain a bill to enforce the opération of the road by trustées for the beneflt of
its gtockholders, although the bill was flled before the sale, and the sale wheu
made was declared to be subjeot to the resuit of the suit in the circuit court,
3. Bbceivbb — Possession of the Couht.
The possession of a receiver is the possession of the court appointing him,
and cannot be divested by a court of corordinate jurisdiction.
4. EviDHiNOE— ADMISStBILITT— BBCOUDS.
The admissibility of copies of a recora in évidence does not render the record
itself inadmissible.
In Equity.
F. A. Brooks, for oomplaînants.
S. N. Bell, Briggs & HvU, Wm. E. Chandler, and Wm. L. Foster,
for défendants.
Clabk, J. The Manchester & Eeene Bailroad was incorporated by
the législature of New Hampahire, July 16, 186é. On the twenty-
ninth of May, 1878, it issued its bonds to the amount of $500,000,
bearing date July 1, 1876, and payable July 1, 1896, with 6 per cent,
interest, semi-annually, To secure the payment and interest of thèse
bonds, it mortgaged its road and franchises, and ail the property ooh-
nected tberewith, to Cornélius V. Dearborn, J. Wilson White, and
Farnum F. Lane, trustées. By this mortgage it was stipulated that
if said railroad failed for a period of six months to pay the interest
of said bonds, upon a request of a majority of the holders, the trustées
might déclare the principal of the bonds to be payable forthwith, and
make demand therefor, and for arrears of interest, and upon f ailure of
payment of the same, within 10 days after demand, might sell the
railroad, property, and franchise by public auction, and make due
conveyance of the same. The railroad made default in the payment
of its interest, and on the twenty-ninth day of April, 1880, Samuel
W. Haie, Henry Colony, John Y. Scruton, and William P. Frye filed
a bill of complaint in equity in the suprême court of New Hampshire
against the Nashua & Lowell Bailroad, the Manchester & Keene Bail'
road, and Dearborn, White, and Lane, trustées. The bill alleged that
the complainants were bondholders of the Manchester & Eeene road,
and, among other things, that by reason of the want of care and proper
management of the directors and trustées, the interest of said bonds
had become overdue, and been unpaid for more than two years, though
demanded, and the road itself was unused, neglected, and rapidly go-
BBnCB V. MINCHëST^ âi E. B. B. 34^
ing to ruin. It prayed, among pther things, that a receiyer might bQ.
appointed for the protection and préservation of the road; that tw<»
of the trustées, Dearborn and White, might be removed, and others ap-;
pointed in their places; and that a foréclosure of the mortgage might
be made. Of this bill of complaint the suprême court of New Hamp-
sbire took immédiate cognizancei, and appointed a receiver to take pos-
session of the road. On the eighteenth day of August, thereafter, it
removed two of its trustées, Dearborn and White, and appointed James
A. Weston, George A. Ramsdell, and John Kimball in their places, and
that of Lane, who had resigned, and they af terwards became parties
to the bill. The bill -was then amended so as to allow other bond-
holders to corne in and constitute the same a proceeding of ail the
bondholders who should désire to become parties thereto; and they
did so come in, among others the Nashua & Lowell Eailroad, which
had been made party défendant in the bill. At the Septernber trial
term of the court, 1880, a hearing was had upon the bill, and the plead-
ings connected therewith, and certain questions of law were reserved
and transferred to the full bench of the suprême court. Thèse ques-
tions were heard at the Maroh term, 1881, decided, and the case re-
manded for a decree in aceordance therewith ; and at the May trial
term next following, a default and breaoh of the condition was ad-
judged to bave taken place, and a decree entered that a foréclosure
be made by a sale at auction of the iroad, its franchise and property,
and that notice be given by publication for the présentation by the
bondholders of their bonds before August 5, 1881,
At the September term, (September 2, 1881,) an order. was made
allowing the bondholders to hold a meeting for the choice of trustées,
if they desired; and that if no such meeting was held within 10 days,
the trustées which had been appointed by the court should proceed
to foreclose the mortgage by a sale according to the decree of the
court at the preceding May term. No such meeting of the bond-
holders was held, and on the twentieth day of September, 1881, in
aceordance with the order of the court, the trustées advertised said
road, its franchises and property, for sale àt public auction, Wednes-
day October 26th, at 12 o'clock noon, at which time the property
was sold subject to the resuit in this suit. November 2l8t the trus-
tées made report of the sale to the court, and the sale was ratifled
and approved. On the twenty-fourth of October, 1881, two days be-
fore the sale of the road under the order. of the court was to take
place, and with full knowledge of the proceedings in the suprême
court of New Hampshire, either by themselves or their attorney,
the complainants in this case filed their bill against ail the parties
complainant in the New Hampshire court; and Charles H. Campr,
bell, who was advertised as auctioneer to sell the road, alleging that
they were bondholders of said road; that the road was in default of
the payment of its interest, and the condition of the mortgage broken ;
and asking this court to order an account to be taken of what is due
344 FEDEBAL SEPOBTEB.
and owing to ail the holders of said bond secured by the mortgage of
May 29, 1878, and now payable; and that said Manchester & Keene
Eailroad may be ordered to pay and satisfy the same at some short
day, to be fixed by the court, together with the costs of suit, and in
default thereof that the said Lane, White, and Dearborn, as trustées
under said mortgage, or that such other persons, if any there be,
who may or shall bave succeeded to the ofiBce of trustées under said
deed of trust, in pursuance of the terms of said deed, in the place
and stead of said Lane, White, and Dearborn, by lawful right may
be required by order of this court to take possession of said Manches-
ter & Keene Eailroad, and of ail the property embraced in said mort-
gage, and either operate the same personally, and take the earnings
thereof, or else to lease said railroad to be operated by otbers, at a
rental, for the benefit of said bondholders, as is provided in and by
said deed of trust, and that the said Haie and Colony and Frye and
Scrutonand Campbell, and any other person or persons who may be-
come the pretended purohasers of said railroad at such pretended sale,
may be restrained from resisting the said Lane, White, and Dear-
born in discharge of their duties under said mortgage pursuant to
the order of this court.
To this Mil of complaint the Manchester & Keene Eailroad has
made answer, setting forth the proceedings of the suprême court of
New Hampshire, its orders and decrees in relation thereto, the sale
of the road, and the foreclosure of the mortgage. Other parties de-
fendant bave made answer, but as no relief is claimed against theni,
those answers are not material to the décision of this case. The
Boston & Lowell Eailroad hâve withdrawn as complainants, and the
remaining complainants make no déniai or question of the jurisdic-
tion of the suprême court of New Hampshire in the premises. The
question then cornes distinctly, whether, upon the bill and answer as
thus stated, this court should grant the relief prayed for, and the an-
swer must be that it should not. The subject-matter of the two suits —
the one in the New Hamphire suprême court and the one in this
court — is substantially the same : the Manchester & Keene Eailroad,
and its default in the payment of the interest on its bonds secured
by the mortgage of May 29, 1878, and the relief of its bondholders.
The relief asked was somewhat différent, but the subject-matter the
same. Over this matter the two courts bave concurrent jurisdiction,
and the rule bas been established, by a long Une of almost unbroken
décisions, that in ail cases of concurrent jurisdiction the court
which first has possession of the subject-matter must décide it. Chief
Justice Mabshall thus announced the rule in Smith v. Mciver, 9
Wheat. 532, and it has been foUowed in many cases since. Malien
V. Dexter, 1 Curt. 178; The Robert Fulton, 1 Paine, 621; Ex parte
Bobinson, 6 McLean, 355; Board of F. Missions v. McMasters, 4
Amer. Law Eev. 526; Ex parte Sifford, 5 Amer. Law Eev. 659;
Parsons v. Lyinan, 5 Blatchf. C. 0. 170; U. S. v. Wells, 20 Amer.
BBUCE V. HANCHESTBB ife K. B. B. 845
Law Bev. 42é; Crâne v. McCoy, 1 Bond. 422 ; Blake v. Railroad, 6 N.
B, E, 331 ; Levi v. Life Ins. Co. 1 Ped. Ebp. 206 ; Hamilton v. Chouteau,
6 Fed. Eep. 339; Ins. Co. v. University of Chicago, Id. 443; Walker
V. F«)it, 7 Fed. Eep. 435 ; fVire Co. v. Wheeler, 11 Fed. Eep. 206 ;
Ins. Co. T. Railroad, 13 Fbd. Eep. 857; The J. W. French, Id. 916 ;
Stowt V. Lye, 108 U. S. 66.
ïhe jurisdiction of the suprême court of New Hampshire first at-
tached, and it had the right to proceed to tbe final détermination of
the cause, to the exclusion of this court upon the same subject-matter.
In Peck V. Jenness, 7 How. 612, Mr. Justice Geiee, delivering the
opinion of the court, says : "It is a doctrine too long established to
require a citation of authorities, that wben a court bas jurisdiction it
bas a right to décide every question wbicb ocours in tbe cause, whether
its décisions be correct or otherwise; its judgment, till reversed, is
regarded as binding on every other court; and that where tbe jurisdic-
tion of a court, and the right of the plaintiff to prosecute his suit in
it, bave once attached, that right cannot be arrested or taken away
by proceedings in another court." "This rule," says the court, "i&
founded not only in comity, but in necessity. If one could adjudge
and tbe other reverse, the contest might go OQ until parties tired,
justice was delayed, and tbe courts were in contempt."
Âgain, when the bill of complaint was filed in this case, the Man-
chester & Keene road was in the bands of a receiver appointed by the
suprême court of New HampBhire. The possession of that receiver
was tbe possession of tbat court, and this court could not divest or
disturb tbat possession, as it must do if it granted the relief prayed
for. Taylor v. Carryl, 20 How. 583; Hagan v. Lucas, 10 Pet. 100;
Freeman v. Howe, 24 How. 460; Buck v. Cdbath, 3 Wall. 334; Walker
V. Flint, 7 Fed. Eep. 435.
It is contended by the complainants that the sale of the road by
tbe trustées under tbe order of the court of New Hampshire was
made subject to the resuit in this suit, and tberefore the relief prayed
for should be granted; but that contention cannot be assented to.
Tbe decree of the court of New Hampshire was absolute, and without
condition, that a foreclosure of the mortgage should be made by a
sale of the road. That decree this court cannot reverse or set aside,
as it practically must do if it now grants the relief prayed for by the
complainants. The court of New Hampshire ordered the trustées
to sell tbe road; this court is asked to order the trustées to run or
lease tbe road for the benefit of tbe complainants. The one is in-
consistent with the otber. Tbe sale of the road was operative to fore-
close the mortgage, and transfer the road to the. purchaser, divested
of tbat incumbrance; and if so, this court cannot treat the mortgage
as still subsisting, and take the road out of tbe possession of the pur-
chaser or of its présent owner.
An objection was made at the bearing that the original records of
the court of New Hampshire, produced by the clerk, were not oom-
346 FEDERilL SSPOBTBB.
pètent évidence ; that copies sTiould hâve been produced. This ob-
jection the court overruled. Copies of record are admitted from
necessity, because the originale cannot be produced. The originals
are the best évidence, and the admission of copies does not exclude
the originals when they can be produced. In Cate v. Nutter, 24
N. H. 108, it was held that where a copy of a record is admissible in
évidence, the record itself is equally admissible. So, in Jones v.
French, 22 N. H. 64, The papers admitted as évidence were not an
extended record; none had been made, but various orders and de-
crees of the court, and in such case; in proceedings in equity, the
original papers and docket entries will be deemed the record. U.
S. Bank v. Benning, 4 Cranch, G. C. 81.
On considération the ruling of the court was correct, and the bill
in this case should be dismissed.
Babtlett and others v. His Impérial Majbstï thb Sxjltan or
TuRKBY and others.
(Oircuit Court, 8. D. Mw York. February 25, 1884.)
Pbactioç— Bbkvipb of Procesb on Attohnet — Soit for Injuttction.
In a suit to enjoin thé prosecution of an action at law, If tlie défendant can-
tiot be found in tbe district, process may be served upon bis attorneys in tjbie
légal action.
In Equity.
Gooèrieh, Deàdy é Platt, for plaintiffs.
Traqj, Olmstead d Tracy, for American National Bank, for the
purposes of this motion only,
Wallaoe, J. The theory of this bill is that the complainants, as
•warehousemen, having been sued by the défendants severally in ac-
tions at law, to recover the possession of personal property in the
custody of complainants as such warehousemen, are entitled to com-
pel the défendants to interplead and relieve complainants from
the burden of the several litigations at law. As part of the relief
prayed for, the complainants seek to enjoin the défendants fromtheir
proceedings at law. For reasons which it is not now necessary to
state, it may be doubtful whether the complainants can maintain
their bill. The question now is, however, not whether the bill is good
upon demurrèr, but whether the complainants are entitled to secure
the appearance of the défendants who cannot be served with process,
beeause they cannot be found within the district by service of process
upon the attorneys for the défendants in the suits at law in this dis-
trict. This bas long been recognized as good practice when the suit
WALIiAMBT IBOH BBIDOB 00. V. HATOH. 84?;
in equity îs brougljt to enjoiu proceedings at law. As the subpœna
bas already been served upon the défendants' attorneys, an order au-
thorizing such service wiU be granted upon presenting a eufficient
affîdavit.
W^iiAMET Ibon Bbidob Go. V. Hatoh and anotber.
{Oireuit Court, D. Oregon. March 3, 1S84.)
1. BiLi, op Rbvtbw.
An application to file a bill of review, without the performance of the de-
cree, ought to be made to the court by pétition and on notice to the adverse
party, and if it appeara that the performance of the decree would destrby the
subject of the litigation, it oujght to be allowed.
3. Bamk— Heabino.
On the hcaring of a bill ôf review the court can only consider the errors of
law apparent on the face of the record, and a fact found or determined by the
decree is presumed to hâve been àufficiently proved by the évidence.
8, Thb Wali.amkt RnrER a Navigable Wateb of thb Unitbd Statbs.
The Wallamet river, though wholly within the state of Oregon, by means of
ita connection with the Columbia river, forms a highway for Interstate and
foreign commerce, and is therefore a navigable river of the (Jnited States, and
subject, as such, to the control of congress.
4. NaviqAblb Waters in Obkoon abe Comuon Hioewats.
The act of February 14, 1859, (11 St. 383,) admitting Oregon into the Union,
which déclares that the navigable waters thèrein shall be " common highWays
and forever free " to the citizens of the United States, is not a compact made
with or condition imposed upon the state in considération of its admission lato
the Union, but is, so far, an absolute and, valid régulation, made by congress
in pursuance of its power over the navigable waters of the United States, as a
means of intersitate and foreign commerce, which it might as well: hâve enacted
before or after as at the time of such admission.
0. OB8TB0CTION TO " COMM ON HlQHWAT."
Congress, by the act of 1859, having declared the Wallamet river " a common
highway," the state cannot authorize any one to build a bridge across the same,
which, under the circumstancea of the cascj will needlessly impede or obstruct
the navigation thereof.
6. JUBISDICTION OP THB UNrTKD States CiBCaiT COtIBT.
The Wallamet river being declared "a common highway" by congress, the
question of what constitutes a needlesg and therefore unlawful obstruction
thereto arises under a law of the United States, and therefore the United
States circuit court has jurisdiction to hear and détermine a suit involVing the
same.
T. The Obdikance op 1787.
Semble, that the clause in the fourth article of the compact in the ordinance
of 1787, concerning the navigable waters of the Northwest territory, was not
abrogated or superseded by the formation of states therein and their admission
into the Union.
Bill of Eeview.
George H. Williams and Rûfu» Mallory, for plaîntiff.
Walter W. Thayer and John M. Gearin, for défendants.
Deady, J. This is a bill of review, filed May 27, 1883, and
brougbt to reverse the final deoree given in this court on October 22,
18SI, in a suit between the parties bereto, commenced by the de-
iReversed. See 8 Su;). Ct. Bep. 811.
3é8 S'XDEBAIi BEPOBTEB.
fendants herein, on January 3, 1881, to obtain an injunctîon re-
straining the plaintiff herein from further constrUoting a bridge
across the Wallamet river, at the foot of Morrison street, in Port-
land, upon the ground that such a bridge as said plaintiff was then en-
gaged in building was an unnecessary and unlawful hindranee and
obstruction to the navigation of said river, — pai-ticularly with sea-
going vessels, — because of the insufficient character and improper
position of the piers and the lack of width in the draw; that said
bridge would be a public nuisance, injurious, and damaging to the
rights and interests of défendants herein, as the owners and lessees
of valuable wharf property in Portland, a short distance above the
site of said bridge, and contrary to the act of congress of Pebruary
14, 1859, (11 St. 383,) which provides "that ail the navigable
waters of said state [Oregon] shaÛ be common highways." An ap-
plication was made to the district judge on the bill, and affidavits,
and counter-affidavits for a provisional injunction, and after a hear-
ing, in which the corporation maintained its right to build the bridge
in question, under and by authority of an act of the législature of
Oregon, of October 18, 1878, authorizing the Portland Bridge Com-
pany, a corporation formed under the laws of Oregon, or its assigns,
to build a bridgo, "for ail purposes of travel and commerce," across
the Wallamet river, between Portland and East Portland, "at such
point or location on the banks of said river" as it might sélect, "on
or above Morrison street, of said city of Portland:" "provided that
there shall be placed and maintained in said bridge a good and suf-
ficient draw of not less than 100 feet in the clear, in width, of a pas-
sage-way, and so constructed and maintained as not to injuriously
impede and obstruct the free navigation of said river, but so as to
allow the easy and reasonable passage of vessels through said
bridge."
On March 28, 1881, an order was made continuing the application
for an injunction until the ApriJ term, and until the circuit judge
shouldbe présent; and restraining the corporation in the mean time
as prayed for in the bill. Hatch v, Wallamet T. B. Go. 7 Sawy. 127;
[S. G. 6 Fed, Eep. 326.] On April 11, 1881, the corporation put in
its answer to the bill, alleging that it was a corporation duly formed
under the laws of Oregon, and the assignée of the Portland Bridge
Company af oresaid ; and admitted that it was building the bridge, as
alleged, under authority of the act of the législature aforesaid, except
that the draw was 105 feet in the clear, instead of 100, and that the
piers were sufficient and at right angles with the current; and denied
the same was or would be any hindranee or obstruction to the navi-
gation of the river, or any injury to the défendants herein. At the
April term the application for a provisional injunction was further
heard upon the bill, answer, and further affidavits and counter affida-
vits, before the circuit and district judge, the counsel for the plain-
tiff herein then conceding that the law of the case had been correctly
WALIiAMET IRON BRIDGE 00. V. HATOH. 349
ruled on the former hearing before the district judge, (Hateh v. Wal'
lamet, I. B. Go., supra,) and that the only question in the case for the
considération of the court was whether, under the circumstances, the
proposed bridge was an unreasonable use of this common highway ;
and on April 17th an order was made allowing the provisional in-
junction restraining the corporation, as prayed for in the bill. Hatch
V. Wallamet I. B. Co. 7 Sawy. 141; [S. G. 6 Fbd. Kep. 781.] Sub-
sequently, the cause was put at issue by the filing of a replication to
the answer, and testimony taken by both parties, and at the October
term it was flnally heard before the circuit judge, who, on October
22, 1881, gave a decree therein for the défendants herein, perpetually
enjoining the corporation as prayed for in the bill, and also requiring
it to remove the material already placed in the river in the construc-
tion of the piers. From this decree an appeal was allowed to the
plaintiff herein on October 23, 1883.
An application was made for leave to file the bill of review, with-
out first performing the decree requiring plaintiff therein to remove
the unfinished piers from the river. The application was based upon
a pétition or allégation in the bill, stating the grounds thereof . Upon
notice to the adverse party it was heard and allowed upon the ground
that the performance of the decree, in this respect, would iuvolve
large expense and the destruction, so far, of the subject of the liti-
gation, so that if the decree is reversed for error, the plaintiff herein
will, nevertheless, suflfer an irrémédiable loss, as in the case of the can-
cellation of a bond in obédience to a decree. Story Eq. PL § 406 ;
Davis v. Speiden, 104 U. S. 83. But I think the better method of
making the application is by a separate pétition for that purpose,
against which the adverse party may show cause and the matter be
fuUy heard and determined-thereojû. The right to file the bill may
dépend upon a question of fac't not determined or affected by the pro-
ceedings or decree in the case, as the pecuniary ability of the party
to pay a given sum of money, and therefore the application should be
made in such manner as will best enable the parties to be fully
heard in the promises. ' The rule requiring the performance of the
decree is said to be "administrative" ratherthan "jurisdictional," and
therefore a bill filed without such performance or leave would give
the court jurisdiction to review the decree ; and if the adverse party
did not move to strike it from the files, he would be held to hâve
waivedthe objection. Davis v. Speiden, supra, 85.
The défendants herein demur to the bill, for that there are no er-
K»rs in the record, nor any sufficient matter alleged in the same, to
require a reversai of the decree. The bill contains an assignment of
errors, 11 in number, most of which are predicated upon th« reasons
given in the opinion of the court allowing the provisional injunction,
rather than the decree itself, and ail but one are simply variations
of the allégation that the court erred in deciding that the act of con-
gress of February 14, 1859, was in any degree a limitation or re-
350 7BDKRAL 9EP0BTEB.
straint upon the ppwer of the state to obstruct or authorîze the ob-
struction of the navigation of the river, by the construction of a
bndge of any character across the same. The exception is the as-
signment No. 4, whioh allèges that the court erred in deciding as a
matter of fact that the bridge in question is or will be a nuisance and
serions impediment to the navigation of the river. This is a pro-
oeeding to review the former détermination of this case and obtain a
reversai of the decree then given therein for errors of law apparent
on the face of the record, — the pleadings, proceedings, and decree, —
without référence to the évidence in the case. Story, Eq. PI. § 407;
Shelton v. Vankleeck, 106 U. S. 532 ; [S. 0. 1 Sup. Ct. Eep, 491.] No
question ismade but that the allégations of the original bill are suifi-
oient to authorize the decree; and the law présumes that the évidence
was sufficient to sustain it. It foUows, then, that for the purpose of
this proceeding it must be considered settled that this bridge, as and
where it was being built, is and would be, as a matter of fact, a seri-
ons and unnecessary impediment and obstruction to the navigation
of the river, by reason of which th« défendants herein suffered and
would suffer, as riparian proprietors, spécial damage. But whether
such obstruction is also unlawful is the question, and the only one,
properly arising on this bill of review. The assignment of errors in
law, as bas been stated, are in effect that the aet of 1859 has no ap-
plication to the case ; that congress has made no provision on the
subjeot of the navigation of the river; and that therefore the whole
question of the lawf ulness of the proposed structure arisee under the
state law, and is without the jurisdiîtion of this court.
The argument of counsel for the corporation, in support of this
conclusion, is, in substance and effect :
(1) The Wallainet river is whoUy within the state of Oregon, and
therefore not within the power of congress to regulate or conserve its
use as a vehicle, or means of Interstate or foreign commerce. Now,
this proposition has no countenance or support in either reason or
authority. In fact, and for ail the purposes of commerce, the Wal-
lamet river is a part of the Columbia, of which it is an important af-
fluent or branch. Together they form, or help to form, a continuons
highway between Oregon and the other Pacific states and territories
and foreign countries; therefore, in contemplation of the constitu-
tional grant of power to congress over the subject of commerce be-
tween thèse states and countries, and for the purpose of regulating
the same, it is the property of the nation — a navigable water of the
United States. The authorities from Gibbons v. Ogclen, 9 Wheat. 1,
to Miller v. City of New York, 3 Sup. Ct. Eep. 234 — a period of 60
years — are uniform and unqualified on this point.
In Gilman v. Philadelphia, 3 Wall. 724, Mr. Justice Swaynb says :
" Commerce includes navigation. The power to regulate commerce compre-
hends the control for that purpose, and to the estent necessary, of ail the navi-
gable waters of the United States which are accessible from a state other than
WALLAMETIBON BBIDQB CO. V. HAIOH. 851
those in which they lie. For this purpose they are the public property of the
nation, and subject to ail tue requisite législation by congress. This neces-
sarily includes the power to keep them open and free f rom any obstruction
to their navigation, interposed by the states or otherwise; to remove such ob-
structions when they exist; and to provide, by such sanctions as they may
deem proper, against occurrence of the evil, and for the panishmeat of the
offenders."
In The Daniel Bail, 10 Wall. 657, it was held that Grand river, a
comparatively insignificant water lying wliolly within the state of
Michigan.but emptying into the lake of that tiame, and only naviga-
ble 40 miles from its mouth to Grand Eapids, for a boat of 123 tons
burden, is a navigable water of the United States, and subject to its
control as à highway of oônirherce, interstate and foreign, on aiccoont
bf its junetion with Lake Michigàn, of which it forms a part. In de-
livering the opinion of thé court, Mr. Justice Field said (page 563)
the coinmon-law test of the navigaibility of a river — the ebb and flow
of the tide therein— does not apply to the rivers of this country :
"Those rivers must be regarded as public, navigable rivers in law which
are navigable in fact; and they are navigable in fact when they are used, or
are susceptible of being used, in their ordinâry condition, as highways for
commerce, over which trade and trayel are or may be conducted in the cus-
tomary modes of trade and travel on waten and they constitute navigable
waters of the United States within the meaning of the acts of congress, in
Contradistinction from the navigable waters of the States, when they form in
their ordinâry condition, by themselveà or by uhiting with other Waters, a
continued highway over which commerce is or may be carried on with other
S[tatBs or foreign countries in the customary modes in which such com-
merce is conducted by water. " .
In Escanaba Co. v. Chicago, 107 U. S* 678, [2 Sup. Ct. Eep. 185,]
it was held that the Chicago river, lyimg wholly within the city of
Chicago, and a little local stream, compared with the Wallamet,
is a navigable water of the United States, becauseit leads into Lake
Michigam; and in Miller v. City. of New York, supra, the same rule
was applied to the East river, a water wholly within the staté of New
York, but Connecting the Hudson and the sound, and therefore a
highway of interstate and foreign commerce. Mr. Justice Field de-
livered the opinion of the court in both thèse cases, and referred to
and relied on the, above citation from the opinion of the court in the
case of The Daniel Bell. See, also, Hatch v. Wallamet I. B. Co.,
supra.
(2) That if congress has the power to regulate the navigation of
the Wallamet river, as a navigable water of the United States,. it
eannot do so by a spécial act, as the statuie of 1850, applicable
alone to the waters of Oregon, but only by a gênerai law, which sball
operate uniformly upon ail such waters in the United States. And
this proposition is also without a sliadowof foundation in either rea-
son or authprity. It is rather late in the day to question the right
of congress to exercise its anthority over the navigable waters of the
United ;States, specially, — ^from tùne to time and place to place, — as
352 rEDEBAL BEPQBTEB.
it may consider the exigenoies of commerce to require. Congress
bas been making appropriations from time to time, for years, to
maintain and improve the navigation of the Wallampt river, but on
this theory of its power ail such acts are void and usurpations of
power, unïess a like provision was made at the same time for every
other navigable water of the United States. In the last 15 or 20
years congress has legislated largely on the subject of bridges over ,
the Ohio, Mississippi, and Missouri rivers, prescribing when, where,
and how they may or may not be built, (Hatchv. Wallamet I. B. Go.,
supra ;) and although important interests hâve been unfavorably af-
fected by such législation, it was never before suggested that it was
invalid for want of such uniformity. It has also legislated specially
upon the subject of a bridge over the East river in New York; and
although the legality of this structure has since been contested from
the circuit to the suprême court of the United States, {Miller v. City
of New York, supra,) no one appears to hâve ever questioned the le-
gality of the act of congress authorizing its érection and prescribing
its character and location, on this or any other ground.
The vice of the argument in support of each of thèse propositions
is the assumption that the navigable waters within a state are exclu-
sively the waters of such state, and therefore congress has no power
over them ; or, if it may legislate concerning them in the interest of
commerce, it can only do so by such gênerai législation as shall limit or
affect the power of each state in the premises equally, so as to préserve,
as it is said, its "equal footing in the Union with the other states." But,
as we hâve seen, this theory of the matter is founded upon a total mis-
apprehension of the relation of the national and state governments
to the subject and to one another. For the purposes of commerce,
and the exercise of the power of congress over that subject, every
navigable Vvater in the Union which of itself, or by means of its con-
nections, forms a continuous highway for Interstate or foreign com-
merce, is primarily the navigable water of the United States, over
which it has the same power for the purposes of surih commerce as
if it was wholly in a territory or the District of Columbia. When
and how far congress will exercise this power is a question for its dé-
termination in each case, looking to the public convenience and gên-
erai welfare. In the exercise of this, as in the case of other congres-
sional powers, no such thing as uniformity of action is désirable or
attainable; and it is also to be considered that what is lawful may
not always be expédient.
(3) That congress has no power, in the admission of a state into
the Union, to impose, by compact or otherwise, any limitation or re-
striction on its, powers or rights as a state, under the constitution;
and therefore the act of 1859, admitting Oregon into the Union, so
far as it attempts to restrict its power over the navigable waters
within its limits, is void and of no effect. But admitting the prem-
ises, the conclusion does not follow. Although the grant of power to
WALLAMET IBON BBIOOE 00. V. BATOH. 853
congress to admit new states into this Union (U. S. Const. art. 4,
§ 3) is unqualified, yet it is well established by the suprême courf
that congress cannot admit a state upon any other than an equal
footing with the other states therein, and therefore cannot, as a consid-
eration of snch admission, make any yalid compact or enactment
which shall deny to such state within its limits the municipal powers
common to the others. Pollard v. Hagan, 3 How. 233 ; Permoli v. New
Orléans, Id. 609; Strader v. Graham,' 10 How. 92. The act of 1859,
admitting Oregon into the Union, contains (section 4) four proposi-
tions to the people of Oregon concerning the public lands therein,
which, in considération of a valuable grant of public land, they ac-
cepted by an act of the législature of June 3, 1859. Or. Laws, 101.
But the admission of the state was not conditioned upon the aecept-
ance of thèse propositions, and in faet preceded it. Nor did the state,
in accepting it, undertake to relinquiah any power or right that be-
longed to it, as a state of the Union, unless it is the right to tax "non-
resident proprietors" higher than "résidents." Therefore, this por-
tion of the act is valid, without référence to such acceptance, as a
congressional enactment respecting the disposition of the public lands
in Oregon. U. S. Const. art. 4, § 3; Pollard v Hagan, 3 How. 224.
But the clause in section 2 of the act of 1859, declaring the navi-
gable waters in Oregon to be "common highways," is no part of thèse
propositions, and does not even purport to dérive its force or vital-
ity from this or any compact, but solely from the fact that it is an
act of congress, duly passed by it in pursuance of its power to regu-
late commerce. The admission of the state and the enactment of the
régulation are simply coïncident in point of time. The one was ad-
mitted unconditiouaîly and the other enacted absolutely; and the
régulation might hâve been enacted on the day before or the day after
the admission, or at any time since as well as theu. But even if it
had been made a condition of the admission of the state into the
Union that the people thereof should consent to this régulation, it
would nevertheless be valid, as an act of congress, because that body
had the power to pass it without their consent. Their consent would
add nothing to its force or validity. In the leading case on this
subject of Pollard v. Hagan, supra, the court say (page 229) of the
following déclaration contained in the compact entered into between
the United States and Alabama, upon the admission of the latter into
the Union, "that ail navigable waters within the said state shall for-
ever remain public highways, free to the citizens 6î said state and
the United States, without any tax, duty, impost, or toll therefor, im-
posed by the said state," (3 St. 492,) that it was nothing more than
a régulation of commerce, and, as such, a valid and binding act of
congress, without référence to the supposed compact or the consent
of the people of Alabama.
(4) That the provision in section 2 of the act of 1859 — "ail the
navigable waters of said state [Oregon] shall be common highways
T.19,110.6— 23
354 FEDERAL EEPOBTEB.
and forever ffee, as well to thfr inhabitants of said state as to ail
other citizens of the United States, without any tax, duty, impost,
or toU therefor" — was not intended, and should not be construed as
a restriction or limitation on tbe power of the state to impede and
obstruct the navigation of the WaUamet river at its pleasure, but
only on its power to impose a toll upon any citizen of the United
States on account of such navigation. This clause had its origin in
the fourth of the articles of compact of the ordinance of 1787, for the
government of the Northwest territory, in whichit was provided that
"the navigable waters leading into the Mississippi and the St. Law-
rence, and the carrying places, between the same, shall be common
highways and forever free, as weU tp the inhabitants of said territory
as to the citizens of the United States, and those of any other states
that may be admitted into the confederacy, without any tax, impost
or duty therefor;" and bas been applied to the states admitted to the
Union since the formation of the constitution, and formed out of ter-
ritory other than that included in the ordinance, it being generally
Bupposed, until a comparatively late day, that thèse articles of com-
pact, and particularly the clause in question, continued in force in
the states formed out of such territory, except so far as altered by
"common consent." Strader v. Graham, 10 How. 97, McLeah and
Caton, JJ.; Palmer v. Com'rs Cvyahoga Co. 3 McLean, 226; Colum-
bus Ins. Co. V. Curtenius, 6 McLean, 209. It is admitted that the
provision does prohibit this state from imposing any tax or toll on
any citizen of the United States on account of the navigation of the
river. But the authority of the national government to restrain the
state in this particular is no clearer than it is to prevent the state
from authorizing or causiug obstructions to the navigation of the
river that may as effectually deprive the citizen of the United States
of its use as a highway as any tax or toll could.
Counsel for the plaintiff hereiu eontend that the words "common
highways forever free, " taken in connection with the rest of the sen-
tence, show that the paramount purpose of this législation "was to
prevent any discrimination betweenthe citizens of the United States,"
in the imposition of toUs on account of the navigation of the river.
But there is no ground for this construction, for plainly the clause does
nôt rest with the prohibition of discrimination in the imposition of
such tolls, but goes further, and prohibits them altogether, as well in
the case of the citizens of the state as of the United States. But the
clause contains two distinct provisions — the one an absolute prohibi-
tion against the imposition of ;tolls for the navigation of the river, and
the other a déclaration that the river shall remaiu a "common high-
way" for the use of ail the citizens of the United States, The two
ihings are separate and distinct, and one is not to be considered the
mère adjunct or amplification ôf the other, because it is found in the
same sentence. The maxim, noscitur a sociis, does not apply. And
if either provision can be considered as subordinate tothe other, it is
WAIiLAMET' IRON BRIDGE CO, V. HA.TOH.
355
the one against tolls. À highway is a public way upon which ail per-
sons hâve a right to pass; and a jpublic river is such a way, since' it
is open to ail the kîûg's sùbjects. Eap. & Law, Law Dict., "High-
way;" 2 Smith, Lead. Cas. 175.
A déclaration or act oî the congress bf the United States that a
navigable water thereof shall be a "common highway," imports, exvi
termini, that such water shall not be closed up orobstructed by dams,
booms, bridges, or otherVise, so as to materially impede or hinder the
navigation of the same. And being a highway, no toll can be oharged
f oir travel thereon, except by consent of the sovereign power which de-
clared and made it such,— the congress ôf the United States,— and they
hâve been forbidden it to be done. The plain purport and eflfect of
the statute is this : (1) The Wallamet river is dedared and made a
"common highway" for the use of ail the citizens of the United States;
and (2) it shall be a "free" highway, upon which no toll, tax, or im-
poet shall be eharged. Being a "common" highway, itis open to ail
citizens ; and being also "free," it is open to them without toll or tax.
Prom thèse premises, the conclusion follows that aûy obstruction to
the navigation of this river, which materially impairs its use as a
"common highway," is eontrary to the actof congress, and therefore
illégal, whether authorized by the législature of the state or not, It
also follows that a case involving the question whether any bridge or
other structure is such an obstruction, is a case arising under a làw
of the United States, and therefore within the jurisdiction of thia
court. Act of 1875, (18 St. 470.) The court then had jurisdiction
to hear and décide the question whether this bridge is or would be
such an obstruction to the use of this highway as is forbidden by the
act of congress. Whether it properly decided the question or not is
a matter depending upon the circumstances of the case as disclosed
by the évidence, and cannot be considered in this proceeding. The
way to détermine that is by an appeàl from the final decree in the
original case to the suprême court, wbere the whole question can be
considered on its merits. And in this connection it should be remem-
bered that the court did not décide that the actof 1859 prohibited the
érection of any bridge across the Wallamet. It prohibits, of course,
the érection of a low, solid bridge, for that would be an impassable
barrier — a complète closing of the highway. And it is equally cer-
tain that it does not prohibit the érection of ahigh, suspension bridge
under which vessels navigating the river might pass without hinderance
or delay. Neither does it prohibit a low bridge, properly constructed
fl^ith a good and sufficient draw, through which vessels may pass
without unnecessary danger or delay^the commerce, size, and con-
dition of the river, as well as the state of the art of such bridge build-
ing being taken into considération. It is well known that ail high-
ways, whether of land or water, are subject to be crossed by other
highways. The commerce of the country cannot be conducted on
parallel lines. But where and in what manner such crossing shall
856 tedebàl bbfobteb.
be made or allowed dépends largely upon the particular cîrcumstances
of each case. Hatch v. Wallamet I, B. Co., $upra.
But the court found upon the évidence that, ail the circumstancea
considered, the draw of the proposed bridge was altogether inadé-
quate; that it ought to be at least 150 feet wide on either side of the
pivot pier, as provided in the act of congress of June 23, 1874, (18
St. 281,) authorizing the Oregon & California Kailway Company to
bridge the river at this place ; and therefore it was a material as well
as needless obstruction to the navigation of the river, causing dan-
ger and delay to the passage of vessels thereon. Neither did the
court hold that such a bridge was even authorized by the act of the
législature of October 18, 18T8. That act requires not only that the
bridge shall hâve a draw of not less than 100 feet in width, but that
it shall be "so constructed and maintained as not to injuriously im-
pede and obstruct the free navigation of said river, but so as to allow
the easy and reasonable passage of said vessels through said bridge.
Upon this point the conclusion of the court was that the legiala-
lature did not intend to déclare that a draw of only 100 feet in width
is sufficient, or to authorize the construction of a bridge otherwise
than with a draw suf&cient for the easy and safe passage of vessels,
whether that must be one or two hundred feet in width, but that if it
did, the act was invalid, beoause contrary to the act of congress,
which on this point is the suprême law of the land. Hatch v. Wallamet
I. B. Co., supra.
And in this connection the court is reminded by counsel for the
plaintiff herein "that it is a délicate duty for a court to déclare an
act of the législature invalid." Of course, the court will not do so
unless the conflict between it and the act of congress is plain. And
for this reason the act of the législature is to be construed, if it rea-
Bonably can, so as to prevent such conflict, and make it harmonize
with suprême law. But really it is well to remember, in a case like
this, that the interested parties who prépare and procure the passage
of an act granting themselves some spécial privilège or franchise like
this are more responsible for it than the members of the législature.
The average member, having no spécial interest in the matter, and
knowing little, if anything, about it, but seeing that the act contains
a plain provision that the bridge shall be built with a good and suffi-
cient draw anyhow, with that understanding gives bis consent to its
passage; and I think it ought to be so construed by the court. Con-
sidered in this, its true light, the act is only a license to the corpora-
tion named therein, or its assigns, to build a draw-bridge at this point,
subject to the act of congress of 1859 ; or, in other words, so as not
needlessly to impede or obstruct the navigation of the river, consid-
ered as a "common highway." Beyond this the législature couldnot
go, and it is not to be presumed that it so intended.
The décision in Escanaba Go. v. Chicago, supra, so much relied on
by the plaintifï herein, is not in conflict with thèse views. In a légal
WALLAMET lEON BEIDQB CO. V. HATOH. 857
point of view, the case is not new, though it contains some whole-
some suggestions upon the application of the law to the facts and cir-
cumstances of that case, whioh are peculiar and altogether différent
from this. A small bayou, called a river, with a current less than a mile
an hour, not a mile in length below its two branches, not exceeding two
miles in length each, not naturally over 150 feet in width, and lying in
the heart of a great city, was deepened and widened so as to serve as
a canal or convenient water-way, whereon to move the lake boats from
the harbor in the lake outside, into which it drained, to the docks and
warehouses along its banks. Over it there are a number of draw-
bridges, erected by public authority, on which pass daily great num-
bers of people, particularly in going to and returning from their busi-
ness and employment in the morning and evening. Amer. Cyclo.
Chicago. The city, by the authority of the state, and with a view of
preventing the inconvenience resulting from the unregulated and con-
flicting use of the bridges and the water-way, passed an ordinance re-
quiring the draws to be closed for the benefit of the land travel for
one hour in the morning and evening, and limiting the period during
which a draw might be kept open for the passage of vessels to 10
minutes at any one time. The suit did not involve the right to build
the bridges, nor the sufficiency of the draws. The right of the city
on both thèse points was taken for granted, and the only question
made and decided was whether, under the circumstances, this was a
reasonable régulation, one that did not needlessly obstruct the use of
the water-way, and the court, if I may be allowed to say so, very prop-
erly and wisely held that it was. The case was-brought in the cir-
cuit court of the United States upon the assumption that the provision
of the fourth article of compact of the ordinance of 1787, whereby the
navigable waters of the Northwest territory were deelared "common
highways" was still in force in Illinois, and therefore the reasonable-
ness of the city ordinance, when judged by this United- States law,
was a fédéral question, and the national courts had jurisdiction of
the case, and the décision was actually made upon this hypothesis.
But the learned justice who delivered the opinion of the court went
further, and said that by the admission of Illinois into the Union "on
an equal footing with the original states in ail respects whatever, " the
ordinance ceased to hâve any effect within her limits, and thereibre
there was no law of the United States regulating the use of the nav-
igable waters of the United States within the state of Illinois, and
therefore the latter was the judge of what was reasonable in the prem-
ises.
The cases cited in support of this latter conclusion are Pollard v.
Hagan, 3 How. 212; Permoli v. New Orléans, Id. 589; and Strader v.
Graham, 10 How. 82. By the first one, as we hâve seen, it was
simply held that congress cannot, by any compact or condition made
with or laid upon a state on her admission into the Union, restrain
or limit her municipal power as sucb state, but that, if the subject of
358 FSDEBAL BEPOBTEft
the compact or condition is within' the power of oongtess to enact oi;
regulate, without the consent of the state, — as to déclare that the
navigable wàter 8 therein shall be "common highways," — it is good as
a law. Itx Bermoli's Case the court only held that so much of the
articles of compact as secured religions freedom to the inhabitants
of the territory of Orléans — the same having been specially extended
there by congress — ceased to hâve any force or eSeot therein upon
the admission ôf the territory into the Union as the state of Louiai-
ana, beeause the subject of religious freedom in a state was beyond
the power of congress, and exclusivély within that of the state. In
Strader's Case it was decided on a writ of error to the suprême court
of Kentucky that the condition of a negro held as a slave in that
state, and wbo had been allowed to visit Ohio, but afterwards re-
turned, was, after such return and in said state. a question arising
solely under the laws'of Kentucky, and therefore not within the juris-
diction of the suprême court. But, in delivering the opinion of the
court, Mr. Chief Justice Taney, referring to some sort of claim that
had bôen made in the argument that the provision in the articles of
compact of the^ ordinance of 1787, prohibiting slavery in the North-
west territory, of which Ohio was a part, had some bearing on the
question of ithe status of the negro, denied that it could hâve any
effect outside of such territory ; and then took occasion further to say
that the ordinance was no longer in force, even in Ohio, where it had
been superseded by the organization and admission of the territory
into the Union as a state, and added that it had been so decided in
the cases of Permoli v. New Orléans and PoUard v, Hagan, supra.
But this statement, though true generally, and in the light in which
the chief justice was considering the articles — that is, so far as they
trenched upon the municipal power of the state, or were inconsistent
with its eontrol over its domestic affairs, — was not otherwise accu-
rate or correct. And for this reason both Justices McLean and
Catron, wbile assenting to the décision that the ordinance had no
application to the case, in any view of the matter, and that the court
had no jorisdiction to review the judgmeut of the Kentucky court,
protested against this dictum of the chief justice, the latter putting
his dissent especially on the navigation clause of the fourth article
of the compact, and saying:
"For thirty years, the state courts within the territory ceded by Virginia
hâve held this part of the fourth article to be in force and binding on them
respectively ; and I feel unwilling to disturb this wholesome course of dé-
cision, which is so conservative of the riglits of others, in a case where the
fourth article is nowise involved, and when our opinion might be disre-
garded by the state courts as obîier and a dictum uncalled for. "
Ànd as we hâve seen, the only question decided in Permoli' s Case
was that the clause in the compact securing religious freedom to the
mhabitants of the territory was necessarily superseded upon its admis-
sion into the Union as a state. while it is admitted that the principle
DUNDEE MORTGAGE, ETC., 00. V. SCHOOL-DIST. NO. 1. 359
of this ruling would include ail similar provisions in the compact.
In Pollard v. Hagm,yi\n\& it was held tHat a statecould not be ham-
pered or bound, in its admission into the Union, with conditions or
compacts that would limit or restrain its municipal power and right,
as compared with the other states therein, it was distinctly decided
that the clause in the ordinance, as appiied to Alabama by the act of
congress of March 2, 1819, (3 St. 489,) authorizing the peopleof that
territory to form a constitution, declaring the navigable waters of the
future state "common highways," was not such a condition, but a
valid law which congress had the power to enact, whether the waters
were within a state or territory.
I, therefore, respectfully submit that the clause in the fourth article
of the compact in the ordinance of 1787, relating to the naviga-
ble waters in the Northwest territory, having been enacted by con-
gress, (1 St. 50,) was a valid commercial régulation as to the navi-
gable waterà in sàid territory or the states afterwards formed therein
until repealed by it, and therefore it is still in force in Illinois. But
be this as it may, the décision does not tonch the question of the
validity or force and efïect of the act of 1859. For on what possible
ground canit be claimedthat the admission of Oregbn into the Union
set aside or superseded an otherwise valid clause in the very act of
admission, declaring the navigable waters of the future state "eom-
mon highways ?"
This case, having been heard before the circuit judge, and the de-
crée under review having been made by him, I thought I ought not to
décide the matter without consultinghim. Accordingly, I submitted
this opinion to Judge Sawyer, with copies of the briefs of counsel, and
he bas authorized me to say that he concurs in it.
There being, then> no error in the original decree, as it appears to
this court, the demurrer to the biU of review must be suatained, and
the bill dismissed, and it is so ordered.
DUNDBB MOBTGAGE, TeDST InVBSTMENT Co. V. SOHOOL-D18T. No. 1,
MuLTNOMAH Co., and others.
(Circuit Court, D. Oregon, March 6, 1884.)
1. Mti/riPLTcrrT off Stnrs.
Equity has jurisdiction to enjoin the collection of a tax levied urtder an in-
valid law, when necesâary to prevent a multiplicity of suits.
2. State Statuts iNvoiiVnîa Fédéral Question,
In construing or determining the validity of a state statute invoMng à féd-
éral question, the national courts are not bound by the décision of the state
court.
Z. Impaiking THE Obmsation of a Contraot.
At the daté of the esecation of a note and mortgage, the law of the state re-
quired the mortgaged premises to be assessed at their full cash value for taxa-
360 FBDEBAL BEPOBTEB.
tion, and afterwarcb an act was passed requiring the note and mortgage to be
assesaed at its par value for taxation, and exempting so much of the land from
taxation ; field that the latter act did not impair the obligation of the contract
betwcen the créditer and the debtor.
4. State Fower of Taxation.
The state has powcr, so long as il does not trench upon the constitution of
the United atates, to tax ail peraons, property, and business within its jurisdic-
tion or reach ; and whether any person, property, or business is so within its
jurisdiction is not a fédéral question, and must be determined by the state for
itself.
5. Ukjfohm akd Equal Taxatiok.
An act of the législature, providing for the taxation of mortgages as land,
which, in effect, exempts ail such mortgages from such taxation upon land in
more than one county, violâtes section 1 of article 9 of the constitution of the
state, which requires that taxation shall be uniform, and imposed according
to its value, upon "ail property" not speclally exempted therefrom, and is
therefore void and of no eflect ; and, semble, that such act is also a " spécial "
one for " the assessment and collection of taxes," and therefore in violation of
subdivision lU of section 23 of article 4 of tim constitution of the state.
6. DuB Pbocess of Law.
The enforcement by the state of a tax levied under a void law is a depriva-
tion of property without due process of law, contrary to sectioif 1 of the four-
teenth amendment to the constitution of the Uniied 8tates.
Suit to Enjoin the Collection of a Tax.
William H. Effinger, Charle8 B. Bellinger, and W. D. Fenton, for
plaintiff.
William B, Gilbert, H. Hurley, and Walter W. Thayer, for défend-
ants.
Deadt, J. This is an application for a provisional injunction on
the bill filed herein, on December 31, 1883, to restrain the défend-
ants hereinafter-named, and others, from selling and disposing of sun-
dry notes and mortgages belonging to the plaintiff, for the non-pay-
ment of taxes levied thereon, in the district and counties where the
mortgaged premises are situate, nnder the provisions and by the au-
thority of the act of the législature of Oregon, entitled "An act to
define the terms 'land ' and 'real property ' for the purposes of taxa-
tion, and to provide when the same shall be assessed and taxed," etc.,
approved October 26, 1882. The défendants — the school district No.
1, and George G. Sears, the sheriff of Multnomah county — were duly
served with a subpœna to answer, and an order to show cause why
the provisional injunction should not issue; and the défendant E. B.
Collard, the sheriff of Yamhill county, appeared and showed cause
against the application, without service. None of the other défend-
ants were served with the subpœna or order, or appeared.
From the bill it may be gathered that the plaintiff is a foreign cor-
poration, duly incorporated under the laws of Great Britain, with its
"principal office at the burg of Dundee, Sootland." That for some
years it has been and now is carrying on in this state, and by the
permission thereof, the business of loaning money upon promissory
notes secured by mortgage or real property therein , and payable in a
certain period of years, with lawful interest, at Dundee, — each of such
potes containing, in addition to the ordinary promise to pay, thèse
DUHDEE MOBTGAGE, ETC., CO. r. SCHOOL-DIST. NO. 1. 361
•words : "This note is given on an aetual loan secured by a mortgage,
by the terms and conditions of which this note is to be governed."
That the money thus loaned is obtained f rom résidents of Great Britain
"on bonds or mortgage debentures" that entitle the holders thereof to
be paid ont of the assois of the plaintiff, including thèse notes and
mortgages. That the plaintiff, as the successor and assignée of sundry
similar corporations heretofore organized in Dundee, and engagea in
the like business in Oregon, is the "ownerand holder" of certain notes
and mortgages made and executed to said corporations for money
loaned in Oregon, and is also the "owner and holder" of certain other
notes and mortgages made and executed to itself for money loaned
therein, amounting in the aggregate to two and a half millions of
dollars; upon ail of which said "bond and debenture holders" bave a
lien for the money advanced by them to the plaintiff and its said as-
signors. That the said loans were ail made before October 26, 1882,
except one in Marion cbunty for the sum of $19,000, and that they
will become due and payable at periods varying from one to five years
hence. That the notes and mortgages aforesaid were made and ex-
ecuted within this state, and afterwards transmitted to the "home
office, Dundee, " where they are kept until the borrower desires to pay
the same, when they are retumed hère for that purpose. That the de-
fendants, the school districts No. 1 and No. 18, and the several coun-
ties of which the other défendants are the sheriffs, respectively, hâve
assessed said notes and mortgages, under the act of 1882, aforesaid,
for taxation, within the respective districts and counties, so far as the
mortgaged premises are therein situate — said district No. 1 having
assessed the same within its limits at $165,610, and levied a tax
thereon of $827.55 ; the eounty of Multnomah at $209,600, and levied
a tax thereon of $3,269.76; and the eounty of Yamhill at $ ,
and levied a tax thereon of $834.46. And said défendants hâve de-
manded payment of the same, and are about "to coerce the payment"
thereof, by the sale of the notes and mortgages so assessed. And that
said assessment and levy are unlawful, because the act under which
they were made, and the défendants are proceeding, is void and of
no effect, for the reason that it is contrary to the constitution of the
United States, and the state ; and that such debts and mortgages are
beyond the jurisdiction of the state.
From the affidavit of the défendant George C. Sears, filed at the
hearing,it appears that "several" of the notes and mortgages assigned
to the plaintiff and assessed for taxation in school-district No. 1 and
the eounty of Multnomah "were made to William Eeid, manager,"
and payable in the state of Oregon; that the corporations of whose
notes and mortgages the plaintiff has become the owner by assign-
ment, as aforesaid, during ail the time they did business in Ore-
gon had a managing agent residing herein, and duly appointed
under the law's of Oregon, concerning foreign corporations doing
business hère, (Or. Laws, p. 617, §§ 7, 8;) and the plaintiff, during
362 PEDBBAIi EEPOBTEB. ,
the period it bas done business hère, lias had a like agent in the
state, whose busiûess, in either case, it was and is to reoeive appli-
cations for loans and make the same; that in the course of such
business such agents hâve retained in this etate ail money received
on said loans, whether of principal or interest, and reloaned the
same herein; and that a "large proportion" of the mortgages, upon
which the collection of the tax is by this suit sought to be enjoined,
were made to secure loans of money so received and reloaned within
this state.
The act of 1882 provides that a mortgage, "whereby land or real
property, situate in no more than one county of this state, is made
security for the payment of a deht, together with.such debt, shall, for
the purpose of assessment and taxation, be dëemed and treated as
land or real property," (section 1,) and "shall be assessed and taxed
to the owner of such security and debt in the county, city, or district
in which the land or real property affiected by such security is sit-
uated;" and "the taxes so assegsed and levied on such security and
debt shall be a lien thereon, and the debt, together with the security,
may be sold for the payment of any taxes due thereon, in the same
manner and with like effect that real property or land is sold for
the, payment of taxes." Section 2. The owner of such mortgage,
"for the purpose of assessment and taxation" shall "be deemed to be
the pei:son to whom the security was given in the first instance," un-
less the contrary appears on the record thereof; and "ail assignments
and transfers of a debt" so secured shall, for the purposes aforesaid,
"be null and void," unless the same "is made in writing upon the
margin of the record of the security;" and ail mortgages "hereafter
executed, whereby land situated in more than one county in this state
is made security for the payment of a debt, shall be void." Section
3. For the purposes aforesaid, no payment on any debt so secured
shall hereafter be considered by the assessor unless indorsed "on the
margin, of the record of such security;" and "the assessor shall assess
such 'debt and security for the full amount of such debt that appears
from the record of such security to be owing," unless in bis judgment
the property by which such debt is secured is notworth that amount,
in which case hie shall assess the same "at their real cash value."
Section 4. A debt so secured on "property situated in no more than
one county in this state, shall, for the purposes of taxation," be con-
sidered "as indebtedriess witbin this state," and the person owing thç
same may deduct the amount from his assessment as such indebted-
ness." Section 8. No "writing which is the évidence of a debt,"
wholly or partly so assessed, "shall be taxed for any purpose in this
state," but such debt and "the instrument by which it is secured,
shall, for the purpose of assessment and taxation," be deemed real
property, and "together be asseseeiiiand taxed" as therein provided.
Section 10.
DUNDEE MOHTGAGE, ETC., 00. B. SGHOOL-DIST, NO. 1. -363
SectionB 6, 6, and 7 of thé act relaté to the duties 6î tbe county
clerk iu f urnishing the assessor with a statement of the unsatisfied
mortgages on record in bis office, and recording the assignments
of Buch mortgages and of ail payments thereon.
The real pnrpose and intent of this act is not far to seek or hard to
find. And, Jirst, it is not, as suggested in the brief of counsel for the^
défendants, to tax the mortgagee's interest in the land to the mort-
gagee and the remainder to the mortgagor. But the purpose is to
tax the "debt" of the moïtgagee and "the instrument by whioh it is
secured," and by deducting the amount thereof from the value of the
land so far exempt it from taxation. In other words, it is a scheme
to tax the debt of the mortgagee, and so far exempt the land of the
mortgagor ; and not only this, but to tax the debt, not at the rési-
dence of the créditer, but the debtor, in tjie county or district where
the mortgaged premises are situate, The debl and mortgage are not
the land, and not even a législative act caû make tbem so; bat they
are to be deemed and considered such, as a matter of convenience,
for the purpose of assessment and taxation, and the collection of the
tax.
For many years prior to this act the law was such that a debt was
taxed, or supposed to be, at tbe résidence of the créditer, and the
debtor was allowed to deduct the amount thereof from his assess-
ment, provided the debt was owing in the state. The resuit was that
the par value of tbe domestic indebtedness of the country, being de-
ducted from the value of the land, as appraised for taxation, about
one-third of its cash value, the value of lands left subject to taxa-
tion was very much reduced. In the rural districts, where the prin-
cipal property is land, and borrowers are more numerous than lend-
ers, the assessment roUs grew very light. The value of the land in
a county, as appraised for taxation, was largely swallowed up in its
indebtedness, while this was principally owned without its limits,
and if it paid taxes at ail, did not do so in tbe county where it was
owing and secured, and had taken the place of the land. As an illus-
tration, take the case of a farmer in Linn county. He owns a farm
worth, in cash, $10,000. He borrows from some person or corpora-
tion in Porfcland $5,000, and gives a mortgage upon his farmto secure
the payment of the same. The county assessor, chosen by himself
and neighbors for that spécial purpose, estimâtes the cash value of
the farm, for the purpose of taxation, at not exceeding $5,000, and,
it may be, at only $3,000. From this f aise valu ation the farmer is
allowed to deduct his indebtedness at its par value, and thereby
eacapes taxation. But the county gets no revenue from $10,000
worth of land situate within its limits. Getting in debt; becomes a
recognized mode of escaping taxation. To correct this evil the légis-
lature, instead.of retracing the steps which led to it, bytaking meas-
ures to secure obédience to the law requiring each "paroel of land"
to be appraised for the purpose of taxation at its "fuU cash value,"
S6é FED£Bâ.L repobteb.
(Or. Laws, 754, § 29,) and to prevent the déduction of any indebted-
ness frotn such valuation, concluded, in its ■wisdom, to go further in
the doubtful direction it was already traveling. And to this end it
passed this act to secure the taxation of the indebtedness deduoted
from the valuation of the land in the county where the land lies, so
far, at least, as it was seoured thereby. And, to make this rigbt of
déduction uniform, it also allows the debtor to deduct his indebted-
ness from the valuation of his land, if secured thereon, without réf-
érence to the résidence of the creditor, by deciaring that such a debt
shall be deemed an "indebtedness within this state," and therefore
taxable in place of the land, and in the county where the land is
situate.
Counsel fbr the plaintiff oontends that this assessment and taxa-
tion of its ïioles and mortgages are illégal and void for the foUowing
reasons : (1) The act of 1882, under -which it is made, impairs the
obligation of the contract betwcen the plaintiiî and its debtors, by
v?hich thfc latter were bound to pay the taxes on the land covered by
the mortgage ; (2) the debts and mortgages of the plaintiff are iu
fact and in contemplation of law existing and owned without the
limita of the state, as its résidence is Dundee, and therefore beyond
the jurisdiction of the state either to assess, tax, or sell; (3) this as-
sessment and taxation are contrary to the constitution of the state of
Oregon, which déclares (article 9, § 1) that the "législative assembly
shall provide by law for uniform and equal rate of assessment and
taxation, and shall prescribe such régulations as shall secure a just
valuation for taxation of ail property, both real and personal, except-
ing such only for municipal, etc., purpôses as may be specially ex-
empted by law," and therefore void, becauso the act under which it
is made arbitrarily and unjustly •discriminâtes between debts and
mortgages on land in no more than one county, and those on land
on more than one county, and therefore does not provide for a "uni-
form" assessment of debts secured by mortgage or for "a just valu-
ation for taxation of ail property," but the contrary; and (4) that the
act of 1882 being void, the collection of the tax levied under it would
so far deprive the plaintiff of its property without due process of law,
contrary to the constitution of the United States. Fourteenth amend-
ment, § 1.
The jurisdiction of the court on the ground of the diverse eitizen-
ship of the parties is admitted, and its power to grant the relief
sought, on the ground of preventing a multiplieity of suits and irré-
médiable injury, is tacitly conceded. In this respect the case falls
within the rule laid down by this court in Goulson v. City of Portland,
1 Deady, 494. See, also, Pom. Eq. Jur. §§ 243-275. " The validity
of the act is questioned in the bill upon other grounds than thèse, as
that it vinlawfuUy discriminâtes between secured and unsecured debts
evideneed by promissory notes, and that it was not passed in con-
formity with the requirements of article 4, § 19, of the constitution
OUNDES MOBTOAOE, ETC., CO. V. SOHOOL-DIST. NO. 1. S65
of the Btate, conceming the reading of bills during their passage
through the législature. But they were not pressed on the argument.
In Mumford v. Sewall, (Daily Oregonian, May 25, 1883,) the su-
prême court of the state held that the aot was duly passed, and that
the législature bas the power to authorize and require the taxation
of mortgages on real property in Oregon, irrespective of the résidence
of the owner of the debt thereby secured, and that the act in no way
impairs the obligation of the contract between the parties thereto:
but whether the state bas power to tax such a debt when payable to
a non-resident was not decided. The national cpurts are not bound
by the judgment of a state court, sustaining the validity of a state
statute, so far as a fédéral question is involved therein. LouisviUe
é N. R. Co. y. Palmes, 3 Sup. Ct. Eep. 193, and cases there cited.
Therefore, the question of whether the actof 1882 impairs the obliga-
tion of the contract between the plaintif and the maker of any of
thèse notes and mortgages, is an open one in this court.
It does not distinctly appear from the bill how the alleged obliga-
tion of the mortgagor to pay the taxes on the mortgaged promises
arose. The first impression is that he directly contracted with the
mortgagee to do so, but as no isuch contract is set out, in either words
or substance, the inference is that none was made, and that the al-
leged liability of the mortgagor to pay such taxes was simply owing
to the fact that, by the law as it stood when the loan was made, the
land was taxed as the property of the mortgagor, and the mortgage
was exempt. But, in any case, the act taxing the debt and mortgage
of the plaintiff and exempting a corresponding value in the land from
taxation does not impair the obligation of the contract. The state
is no party to this contract; and its power of imposing and collecting
taxes upon persons, property, and business within its jurisdiction
cannot be affected or restrained by it. True, the laws in force when
the mortgage is made, deûning what constitutes a valid mortgage
and prescribing the remedy for its enforcement, are to be regarded
as part of the contract; and any essential change in thèse, is so far
invalid as impairing the obligation of the contract. But a law im-
posing taxes npon the subjeet of the contract or the property affected
by it, or exempting either therefrom, is no part of such contract;
and is so far within the power of the state to alter or repeal from
time to time as the public good or convenience may require.
It may be admitted that any provision in the mortgage itself or in
a contemporary statute, providing who, as between the parties thereto,
shall pay the taxes imposed by the state on the mortgaged premises,
or the debt or mortgage itself in lieu thereof or otherwise, is beyond
the power of the state to alter or modify to the préjudice of either
party. To do so would impair the obligation of the contract. But
when andto what extent taxes shall be levied is a question for the
state to décide. Parties interested in property liable to taxation
may contract, as between themselves, on whom the burden of such
366. FBDEBAL EKPOaTEE.
taxation shall ultimately fall, but they cannot by such means limit
or control the power of the state in placing or apportioning this bur-
den in the first instance, nor in enforcing its payment or collection
accordingly.
The liability of the mortgagor to pay taxes on the mortgaged prem-
ises at the time of the exécution of the mortgage was primarily to the
state. It arose out of a law of the state, and not the contract with
the plaintiff; and might thereafter be modified or discharged by the
authority of the same, without any référence to the agreement or
wishes of th& parties. As a means of protecting himaelf against the
delin(jue2cy of the mortgagor in this respect, the statu te in force
since 1854 (Or. Laws, p. 770, § 105) expressly provides that the mort-
gagee may pay any delinquent tax on the mortgaged premises, and
add the amount to his mortgage, and enforce the collection of the
same as a part thereof. But whether this provision, or an express
agreement to the same effeot, should be construed to inolude taxes
levieJ under a subséquent statute on the debt or mortgage itself, or
both of them, in place of the land, or so muoh of its value as being
within th]e equity of the statute or contract, is a judicial question be-
tween the parties to the mortgage, and one over which the state has
no législative control. And if it should be determined in the néga-
tive it would only add another to the many instances in which stat-
utes and contracta made in contemplation of future events bave not
been found broad or full enough to comprehend and provide for ail
the changea and contingencies that may occur in the course of time
in human alïairs. But it is to be understood that the contract by
which the parties to a loan or mortgage may provide between them-
selves, for the payment of taxes imposed thereon or thereabout, is
otherwise lawful when made. Neither is it material in this connec-
tion that the holders of the mortgage debentures issued by the plain-
tiff in Scotland, and upon which it obtained the money loaned on
thèse notes and mortgages, may be inoonvenienced or even injured by
the enforcement of this tax in the mode prescribed, or that guch notes
may thereby lose their negotiability. The act is not responsible for
the inconveniencies which may resuit from disobedience to it. The
restriction placed upon the negotiability of the notes by the act is only
for the purpose of taxation, and can be of no inconyenience to any
one except in a case of delinquency, and then the blâme must rest on
the delinquent. Nor is it material, if true, that the plaintiff may not
be able to pay thèse debenture holders the rate of interest on their
money that it expected or agreed to, because of the imposition of
this tax. If the power of the state to levy taxes was in any way lim-
ited or restrained by the fact that its exercise might hinder or pre-
vent any one from performing his contract with another, it would be
useless. If A. rents a mill of B., and afterwards becomes unable to
pay the rent on account of a tax which the state imposes on his busi-
ness, it cannot be admitted for a moment that thp act imposing this
DUNDEE MOSTGAGB, ETC., 00, U. SCHOOL-DIST. NO. 1 367
otherwise valid tax is void, on the ground that it impairs the obliga-
tion of its contract to pay the rent. It may hâve impaired his ability
or means of performing his contract, and so might a fire or flood,
but the obligation to perform the contract would be untouched in
either case.
But I suspect the truth about this complaint is that, after the pay-
ment of this tas in addition to the interest due the debenture holders,
the profits accruing to the plaintiff are just so nrach dimiûished; but
that may happen to any one who loans money in a country where
mortgages are taxable or liable to become so. Whether thèse notes
and mortgages are within the jurisdiction of the state, for the par-
pose of taxation, is a question in this case, but not, as I understand,
a fédéral one. There is no provision in the constitution or laws of
the United States that can be invoked to prevent the state from tax-
ingany property on the ground that it is not within its jurisdiction.
The power of a state to levy and coUect taxes la not directly limited
or restrained by the national constitution, except in the case of duties
on "imports and exports" and "tonnage." U. S< Const. art. 1, § 10.
In a few other cases it is so restrained, inoidantally and by implica-
tion, as that the obligation of a contract shall not thereby be im-
paired, or that the powers of the national government, or the agencies
by which they are oxercised, shall not be hindered or interfered with.
Railroad Tax Case, 8 Sawy.250; [S. G, 13 Fed. Eep. 722.] AU
other limitations upon this sovereign power must be found either in
the constitution of the state or the wisdom and justice of the législa-
ture and people. So long as a state does not intrpnch on the con-
stitution of the United States, it may tax anything within its reach, —
anything it can lay its hands on, and subject to its power. Kirthnd
V. Hotchkiss, 100 U. S. 498. It follows that this court, in deciding
this question of the taxability of thèse subjects by the state, will be
governed by the décisions of the suprême court of the state. In Pop-
pleton v. YamhillCo. 8 Or. 341, it was held that notes and mortgages
are personal property, and, as such, subject to assessment and taxa-
tion. In Mumford v. Sewall, supra, as we hâve seen, tha court held
that a mortgage upon real property in this state iS taxable by the
state without référence to the domicile of the owner, or the sites of
the debt or note secured thereby. And this conclusion is accepted by
this court as the law of this case. Nor do I wish to be understood as
having any doubt about the soundness of the décision.
A mortgage upon real property in this state, whether considered
as a conveyance of the same, giving the créditer an interest in or'
right to the same, or merely a contract giving him a lien tbereon for
his debt and the power to euforce the payment thereof by the sale of'
the premises, is a contract aflfecting real property in the state and
dépendent for its existence, maintenance, and enforcement upon the
laws and tribunals thereof, and may be taxed hère as any othes in-
terest in, right to, or power over land. And the mère fact that the
868 FBDBBAL BEFOBïEB.
instrument bas been sent out of the state for the time being, for tbe
purpose of avoiding taxation thereon or otherwise, ia immaterial.
But the right to tax the mortgage may not give the state any direct
power over the debt, when the same is actually held without the lim-
ita of the state. But indirectly it does. Â sale of the mortgage,
although it would not carry with it the debt, would separate them,
and leave the latter without any seourity. A purchaser of the mort-
gaged promises from the mortgagor, who bas or may purchase the
mortgage when sold for taxes, would thus unité in himself the inter-
est of both mortgagor and mortgagee, and hold the property dis-
eharged from the debt.
But counsel for the défendants claim that thèse debts are actually
w'.thin the jurisdiction of the state for the purposes of taxation, on
the ground that the plaintifif and ita aBsignor» in the transaction of
their business hère, out of which thèse notes and mortgages arose,
maintained an agent in the state under the foreign corporation act.
Or. Laws, p. 617, §§ 7, 8. As to any of the foreign corporations re-
quîred by that act to appoint an agent to represeut it within the
state, before doing business hère, it is clear to my mind that, as to
suoh business, and for the purposes of taxation, it is a domestic cor-
poration, having a résidence within the state. But in the case of
Oregon é Wash. T. é I. Go. v. Rathbun, 5 Sawy. 32, this court held
that a foreign corporation engaged in loaning its own money in this
state was not within the parview of the act, as limited by its title, and
therefore not required to appoint such agent before doing business
hère. But admitting that the plaintifE was not required, while doing
business in Oregon, to appoint and keep an agent hère under the for-
eign corporation act, nevertheless it appeara to be a fact that the
business out of which thèse notea and mortgages arose was done hère
through an agent, résident in Oregon. The money of the plaintiff
was sent hère to be loaned by this agent upon applications made and
accepted hère. And although the notes were made payable to the
plaintiff in Dundee, and with the mortgages sent there for safe keep-
ing, they are and hâve been returned hère for payment, and the money
received on them reloaned hère. It is altogether probable that the
otherwise uaeless ceremony of making thèse notes payable in Dundee,
and sending them there for custody until their maturity, and then re-
turning them hère for payment and collection, ia a mère shift to avoid
taxation thereon in Oregon. In fact, it appears that the money was
loaned in Oregon and the notes made hère, with the understanding
between the parties that, whatever their ténor, they sbould be paid
and payable hère. If the plaintiff was actually engaged in loaning
money in Dundee, and a résident of Oregon sbould go or send there
and procure a loan from it and give bis note therefor, the case would
be a différent one, although the note was seeured by a mortgage on
real property in Oregon. But it is plain to be seen that that is not
this case, and that the plaintiff could never hâve done this volume of
DUNDEE MOBTGAGE, ETC., 00. V. SOHOOL-DIST. NO. 1.
business hère in that way. Therefore, availing itself of the comii^
of the state, it cornes hère, in the person of its authorized agent, with
its money, loans and reloans it, and is, so far, I think, a résident hère
for the purposes of taxation.
The maxim so much relied on by the plaintiffs — that personal prop-
erty follows the person of the owner — is but a légal fiction, invented
for useful purposes, and must yield whenever the purposes of con-
venience or justice make it necessary to ascertain the fact concern-
ing the situs of such property. In cases of attachaient and for pur-
poses of taxation it is constantly disregarded, as the foUowing cases
will show: Catlin v. Hull, 21 Vt. 158; People v. Com'rs of Taxes, 23
N. Y. 226; People v. Home Ing. Co. 29 Cal. 633; Green v. Van Bus-
kirk, 7 Wall. 150. And the case of State Tax on Foreign-held
Bonds, 15 Wall. 300, cited and also much relied on by counsel for
the plaintifif, only décides that a state law which cornes between the
foreign lender and the local borrower, and compels the latter to pay
a portion of the interest due the former on bis debt, as taxes to the
state, is void because it impairs the obligation of the contract between
the parties. And this same ruling could as well bave been made on
this ground if the parties had botb been citizens of the state seeking
to impose the tax. The case was before the court on a writ of error
to the judgment of the suprême court of the state of Pennsylvania,
and this was the only fédéral question in the case, and therefore the
only one determined by it. But on the question of uniformity I con-
fess I am unable to find any ground on which this act can be har-
monized with the constitution of the state and upheld as a valid law.
It is expressly confined to mortgages on land in only one county, and
thereby admits what was conceded on the argument, and what the
court may judicially know, that there are mortgages in this state on
land in more than one county. Section 1 of article 9 of the consti-
tution of the state, already referred to, not only requires the législa-
tive assembly to "provide by law for uniform and equMl rate of as-
sessment and taxation," but also to "prescribe such régulations" —
make such laws — "as shall secure a just valuation for taxation of
ail property, hoth realand personal, excepting such only for municipal,
educational, etc., purposes as may be specially excepted by law."
And section 32 of article 1 déclares that ail taxation shall be equal
and uniform."
The rule on this subject prescribed by the constitution is manda-
tory, and the législature in exercising the power of taxation must
conform its action thereto. But the constitution must hâve a rea-
sonable and practical construction in this respect. It does not re-
quire that a law on this subject shall hâve mathematical précision or
secure in practice absolute equality and uniformity. But it must at
least appear to hâve been enacted with a view to uniformity, and
must contain provisions reasonably calculated to secure that end in
practice. But when an act not only fails to secure uniform taxation.
v.l9,no.6— 24
370 FEDERAL REPORTER.
but apon its face appears to hàve been passed witha ftontrary intent,
there can bô no question of its invalidity. For instance, no one
would claim that an act taxing mortgages in ail the counties of the
state, excepting Yamhill, or one taxing mortgages in ail the counties
of the state except those in the Wallamet valley, was intended or cal-
culated to produce "uniform" taxation, or to secure "a just valuation
for taxation" of "ail property" not exempt therefrom by the constitu-
tion.
Now, there is no différence in principle between sueh an act and
the one under considération, and very little in the circumstances.
The latter taxes mortgages on land in no more than one county and
exempts those on land in more than one county. The mortgage
taxed and the mortgage not taxed, and the property affected by them,
are in ail essentials the same, The only différence between them is
the purely adventitious and immaterial one, that in the one case the
land is ail in one county, and in the other is in two or more, as in the
case of the railway mortgages, Without admitting that there can be
any classification of mortgages for taxation, under the constitution of
the state, so as to produce a différence in the burden imposed on
them or the cost or oonvenienoe of discharging it, there is no ground
to say that this discrimination between one and two county mort-
gages is the resuit of a honafide or other attempt to so classify mort-
gages for the purpose of taxation. Classification for the purpose of
state taxation cannot be arbitrarily màde, as by mère référence to
the county in whioh the property is situated. For such purpose a
mortgage upon an acre of lahd in Polk county is not distinguishable
from one on an acre of land in Benton county ; and a law providing for
the assessment and taxation of one and not the other is wanting in the
uniformity required by the constitution, and therefore void. This
conclusion cannot be made plainer by argument. If the injuOctions
of the constitution in this respect mean anything, they certainly pro-
hibit this kind of unequal and discriminating législation on the sub-
ject of taxation.
This being a suit between a foreign corporation and citizens of this
state, the court has jurisdiction of the controversy on account of the
citizenship of the parties, whether a fédéral question is involved in
the controversy or not. The défendants are intending and attempt-
ing to sell and dispose of the notes and mortgages of the plaintiff re-
spectively assessed by them for the non-payment of an illégal tax;
and this being repeated from year to year until the rgaturity and pay-
ment of the notes, the plaintiff may be compelled to maintain a cor-
responding number of actions at law to recover the amounts so col-
lected, to prevent and avoid whioh an injunction will be allowed.
Pom. Eq. Jui'. §§ 2é3-275. But the act under which the défendants
are proceèdingto dispose of the plaintiff's property for taxes, being
void, such disposition constitutes a violation of section 1 of the four-
teenth amendment to the constitution of the United States, which for-
DUNDEE MORTGAGE, ETO., COi l?. SOHOOL-DIST. NO. 1. 371
bids a Btate "todeprive any person of life, liberty, or property with-
out due process of law," and therefore this court àas jurisdiction of
the case, as one arising under said constitution, without référence to
tiie citizenship of the parties thereto. If the défendants, acting for
and in the, name of the state, are allowed to take the plaintiff's prop-
erty for taxQS assessed under a void law, the state would the^-eby de-
prive the plaintiff of such property "without due process of law, con-
trary to the constitution of the United States. Railroad Tax Case,
8 Sawy. 251, 287; [S.. G. 13 Fed. Eep. 722.]
The constitution of the state (article é, § 23, sub. 10) also prohib-
its the passage of "spécial or local law * * * for the assessment
and collection of taxes for state, county, township orroad purposea."
In Manning v. Klippel, 9 Or. ,367, it was held that an act providing
for the compensation of the sheriffs and clerks of 14 ■ out of the 23
counties of the state was a "local" law for the assessment and collec-
tion of taxes for county purposes, and therefore within this prohibi-
tion and void. The terms "spécial" and "local" are not always con-
vertible, though the former may incladathe latter. A spécial act i»
one that cornes short of being gênerai. The latter comprehends the
genus while the former is conûned to the species. In Holland's Case,
4 Coke, 76a, cited in Smith, Comm. § 798, it is said, by wayof illus-
tration: "Spiritualityis ,9e/itt8; bishopric, deanery, etc., are apecies;"
and the author adds : "Hence, acts which concern the whole spiritu-
ality in gênerai are gênerai acts. * * * A statute concerning
leases made by bishopa is a spécial act, because it concerns the bish-
ops only, who are but a species of the spirituality. * * *"
An act providing for the assessment of mortgages generally is, so
far, a gênerai act. It comprehends the ^tJnits. But an act providing
for the assessment of ail mortgages for sums exceeding $500> or not
payable within one year from the date.of their exécution, is spécial.
It comprehends only a species of mortgages. So an act providing
for the assessment of mortgages on wopd lands, plow lands, or
river lands is spécial; and, in my judgment, an act that taxes mort-
gages on land in no more than one county, to the exclusion of those
on land in more than one, is in the same category. It does not com-
prehend the genus, mortgages, but only the species, one-county mort-
gages. Without imputing to the législature that passed this act any
other purpose in making this discrimination between one and two
county mortgages, than a désire toavoidthe supposed inconvenience
of- applying it to the latter, it is well to remember that spécial légis-
lation in the imposition of taxes is sure, if unrestrained, to run into
partiality, oppression, and injustice. To prevent this evil this inhibi-
tion against spécial législation was placed in the constitution. It is
not material to the décision of this application nor the case, except
as to the loan in Marion county, to ascertain how far, if at ail, this
act is prospectively valid. It forbids any more twtf-bounty mort-
gages being made, but it cannot, nor does not, attempt to annihilate
372 FEDERAL BEPOBTEB.
or strike ont of existence those made before its passage. Admîtting
that the législature cannot discritninate between mortgages on the
ground of the locality of the property affeeted by them, it foUows that
80 long as there are any two-county mortgages in existence in the
state, an act taxing only one-county mortgages is open to the objec-
tion of want of uniformity. In reaching this conclusion concerning
the validity of this act, I bave not been unmindful of the responsi-
bility of declaring an act of the législature void. But, as was said by
this court under similar circumstances, (Oregon é Wash. T. é I. Co.
V. Ratkbun, 5 Sawy. 38,) "In a plain case like this, it is as much the
duty of the court to déclare the act of the législature invalid as to re-
form or set aside a contract for mistake or fraud. In so doing, it
but upholds and obeys the suprême law, — the constitution, — to which
both courts and législatures are bound to conform their conduct."
Let the injunction issue as prayed for; the plaintifiE first giving a
bond with sufficient surety, to be approved by the master of this court,
in a sum equal to the tax in question and 20 per centum thereon,
conditioned that the plaintiff will pay ail damages which the défend-
ants or either of them may sustain by reason of suoh injunction, if
the same shall be held wrongful, to be ascertained by a référence or
otherwise, as this court may direct.
Due proness of law, County of Santa Clara v. Southern Pao. R. Co. 18
FED. Rep. 385, and note, 449; Raïlroad Tax Cases, 13 Fed. Eep. 722, and
note, 783; obligation of contract, Sawyer v. Parish of Concordia, 12 Fed.
Kep. 754, and note, 761; state power of taxation and equality and uniform-
ity, Railroad Tax Cases, 13 Fed. Eep. 722, and note, 785;. In re Watson, 15
Fed. Eep. 511, and note, 514; State of Indiana v. Pullman Palace Car Co.
16 Fed. Eep. 193, and note, 201 ; County of Santa Clara v. Southern Pao. R.
Co. 18 Fed. Rep. 385, and note, 445; restraining collection of tax. Second
Nat. Bank v. Caldwell, 18 Fed. Rep. 429, and note, 434; taxation of national
bank shares, Second Nat. Bank v. Caldwell, 13 Fed. Rep. 429, and note.
433; Exohange Nat. Bank v. Miller, tnfra, and note. — FEd.
ExoHANGB National Bank v. Miller, County Treasurer, etc.
(Oireuit Court, 8. B. OMo, W. D. February 7, 1884.)
:, Taxation— National Bank Sharbs— Inbqualities in VALtrATioN,
Inequalities in the valuation of property for taxation, under the constitution
and laws of a state requiring that ail property shall be taxed upon its value
by a uniform rule, aflEord no ground for relief, unless it be made to appear that
such inequalities resuit not merely from error in judgment on the part of the
asdessing offlcer, but it must appear aiso that there was an intentional discrim-
ination. The same rule applies to the valuation of shares in national banks
t Reported by }. C. Harper, £aq., of the Cincinnati bar.
EXCHANOE NAT. BANK V. MILLER. 873
for taxation, wheré it appears that they were artuallyassessed at a greater rate
than other moneyed capital in tlip liands of individus! tax-payers of the state.
Intentional discrimination may be establislied by proof of inequalities so gross
as to lead tlie court to tlie conclusion that thry weredesigaed. But the facts
do not warrant such conclusion in this case.
2. (JonpoRATiONS — Shaees are Phoperty Distinct fkom thb Pbopbbtt of thb
Corporation.
Shares in the capital stock of corporations in Ohio are not necessarily to be
treated or regard ed as portions of the capital of the corporation. Tney are
property of the shareholders, distinct and separate from the property of the
corporation itself.
S. Taxation of National Banx Shabks— True Monet Vaujb.
Lfnder the constitution and laws of this state, and also under the law pf con-
gres» authorizing taxation on sharee in national bunks, they may be taxed at
theJr true money value.
4. Same— United Btates Bo.\ds and Othbb Non-Taxable Securitieb not De-
DUCTED.
A statutory rule fixing such value, which does not permit a déduction there-
from for the' amount of United States bonds or other non-taxable securities
held by the bank, is not in couflict with the constitution of Ohio, nor witli the
law of congress authorizing taxation on such shares.
5. Samb— Ohio— Such Non-Taxable Securities Dbdticted from Rbtuens of
luorviDUAL Bankers, but not fbom Thosb dp National Banks.
The élimination from the returns made by unincorporated banks and indi-
vidual bankers to the assessing officers, within the state of Ohio, of ail United
StatPB bonds and other non-taxable securities held or owned by sucti bank or
banlcer, is not a déduction nor a discrimination in favor of such bank or banker
and agalnst the holder and owner of shaies in national banks, although such
shares are valued for taxation without such déduction for the non-taxable se-
curities held and owned by the bank.
6. Same— "Other Moneyed Capital" Mkans Taxable Moneyed Capital.
"Other moneyed capital," in section S219, Kev. St., refers to other toa!aW«
moneyed capital, and the valuation of shares in national banks for taxation is
not, within the me<aniag of that section, at a groater rate than the assessment
of other moneyed capital, unless such other moneyed capital besubject orliable
to taxation.
In Chancery.
Perry é Jenney, Stallo, Kittredge é Wilby, and Harrison é Olds, for
complainant.,
Foraker dt Black and 0. J. Cosgrove, Co. Sol., for défendant.
Before Baxtek and Sage, JJ.
Sage, J. The tax from which the complainant prays to be relieved
was assessed on the duplicate of 1882, under the foUowing sections
of the Eevised Statutes of Ohio :
"Sec. 2765. The cashier of each incorporated bank shall make out and re-
turn to the auditor of the county in which it is located, between the flrst and
second Monday of May, annually, a report in duplicate, under oath, exhibit-
ing, in détail, and under appropriate heads, the resources and, liabilities of
such bank at the close of busineiss on the Wednesday next preceding said sec-
ond Monday, together with a full statement of the names and résidences of
the stockholders therein, with the number of shares held by each, and the par
value of each share.
"Sec. 2766. Upon receiving such report, the auditor shall flx the total value
of the shares of such bank according to their true value in money, and de-
duet from the aggregate sum so found the valup of the real estate included
in the statement of resources as the same stands on the duplicate; and when
the bank is located in any city of the flrst or second class, he shall thereupon
8T4 FEDERAL BEPOKTEB.
make oui and transmit to the dty board of equalîzation, otherwise to the
eoiinty board o£ equalization, a copy of the report bo made by the cashier, to-
gether with the yaluation of such shares as so fixed by the auditor."
The complainant contesta the validity of the tax on the gênerai
ground that its shares are asseseed at a higher rate than other
moneyed capital in the hands of individual citizens, specifying (1)
that the shares are valued too high, eompared with other property
on the tax duplicate; and (2) that the assets of the complainant
consist, in part, of United States bonds, not subject to taxation, but
included in the valuation made by the auditor and placed on the
duplicate.
In support of the first objection the complainant has introduced
testimony relating to a meeting ôf decennial assessors from ail parts
of the state, held at Columbus in 1880, preparatory to the apprais-
ing of real estate, at •whioh meeting, according to the testimony of
two witnesses, the conclusion or gênerai understanding was that
real estate should be assessed at two-thirds to three-fourths of its
value, and that by that rate the assessment would represent the true
cash value in money, taking into considération "that real estate is
almostalways sold on long terms, and the losses oceurring thereby."
A third miness testifies that he was présent, but that to the best of
bis recollection no rate was fuUy agreed upon. One witness states
that the meeting was quite large, but how many assessors attended,
or how many localities were represented, does not appear, nor does
it appear that assessors were guided in their valuation s by the action
of the meeting, in opposition to their own judgment of the money
value of the property by them appraised. There is testimony also
that the object of the meeting was to make the aasessments of real
estate uniform. And whether two-thirds to three-fourths of what is
spoken of by witnesses as the value of real estate sold upon pay-
payments — part in cash and part on time — would be what is spoken
of as its true cash value in money, does not appear. There is testi-
mony tending to show great inequalities in the valuation for taxation
of real and personal property, including shares in national banks,
but in no instance does a witness testify that any assessor has been
governed in making an assessment by any other rule than his judg-
ment of the true money value of the property assessed.
It is contended for the complainant that this testimony brings the
case within the rule of Peltan v. Nat. Bank, 101 U. S. 143, and
Cummings v. Nat, Bank, 101 U. S. 153. That is not our view. In
Pelton V. Nat. Bank it was held that the systematic and intention al
valuation of ail other moneyed capital by the taxing officers far below
its full value, while shares of national banks were assessed at theii*
f uU value, waa a violation of the act of congress which prescribes the
rule by which they were to be taxed by the state. In that case the
court found that the valuation of national bank shares was inten-
tionally higher than the valuation of other personal property, and
EXCHAHaE MAT. BANS V. MÏLLËB. S7§
that this discrimination was neither an accident or a mistake, but a
principle deliberately adopted in the valuation of ail sharés in na-
tional banks, and applied -without exception; and therefore the decree
below in favor of the complainant was ftffirmed. • In Cummings v.
Nat. Bank, the suprême court found that the assessors of real prop-
erty, the assessors of personal property, and the auditor of Lucas
county, Ohio, concurred in establishing a rule of valuation by which
real and personal property, except money, was assessed at one-third,
and money or invested capital at six-tenths, of its actual value, and
that the assessments on shares of incorporated banks, as returned by
the state board of equalization for taxation to the auditor of Lucas
county, were fuUy equal to their selling price and to their true value
in money, and the decree enjoining the collection of the excessive tax
wâs affirmed.
No such state of facts la shown in the case now before this court.
It is true, as shown by the testimony, that, although the shares of the
complainant were valued for taxation at but 86.7-j- per cent, of their
true value in money, they were valued higher than other peïsoùal
property, but the error or inequality is not shown to arise otherwise
than ÎTôm a niistake in judgment on the part of the assessing offi-
ciais. It would, perhaps, be more exact to say that the judgment of
the assessors, in their officiai valuation, dififers from the judgment of
witnesses in their Unoffieial valuation, as expressed in their testimony.
The différences are no greater than f requently arise between witnesses
in cases on trial on questions of value; And there is no certain stand-
ard by which the court can détermine which is correct. Valuations,
excepting of money and of standard markôtable articles, are, at best,
uncertain. The influences which affeot salable values are varions
and often complicated. Much dépends upon who is the owner or
vendor, as well as upon who is the purchaser. The shrinkage in the
value of estâtes resuit in many instances largely from the considéra-
tion that the salable value imparted by the fact of the ownership of
the deceased is gone. A thoùsand influences, tangible and intangi-
ble, so affect the salable value of property, real and personal, in the
city and in- the country, as to make its true valuation a work of ex-
ceeding diffioulty, and it is not to be wondered at, nor is it a circum-
stance of itself warranting an appeal to a court of chancery, that
there are great inequalities in valuations for taxation. To correct
thèse the state has provided for appeals to appropriate tribunals,
whose duty it is to equalize valuations and the burden of taxation.
When thèse are exhausted ail that can be done, practioally, is done,
excepting in cases of intentional discrimination.
We are of opinion that the rule laid down in Nat. Bank v. Kim-
ball, 103 U. S. 732, applies hère. There it was held that no case
for relief is made by averring that the assessments are unequal and
partial, and that soms other property is rated for taxable purposes
at less than one-half of its cash value, unless it is further avèrred
S76 FEDEBAL BEPOBTEB.
that the offioers appoînted to make assessments combine together
and establish a rule or principle of valnation, the necessary resuit of
which is to tax one speeies of property higher than others, and
higher than the average rate. It bas been held, and, we think, cor-
rectly, that inequalities in valuation may be so great as to author-
ize the court to conclude that they are the resuit of intention, but we
do not think that the testimony warrants such conclusion in this
case.
To the same effect as Nat, Bank v. Kimhall is Wagoner v. Loomis, 37
Ohio St. 57 1, where it was decided that inequalities in valuations, made
under a valid law, of property for taxation, do not constitute grounds
for enjoining the tax, in the absence of fraudulent discriminations by
the agents and officers making such valuations, ànd that a pétition for
such injunction, which shows that the plaintiff's property was valued
at only 80 per cent, of its true value in money, while other property
in the county was valued at only 40 per cent, of its value, and avers
that such valuations were unequal, unjust, and illégal, is insufficient.
2. Is the assessment invalid for the reason that the assets of the
complainant consisted in part of United States bonds, not subject to
taxation, but included in the valuation made by the auditor, and
placed on the duplicate ? The législature, in providing for the tax-
ation of shares in national banks, is subject to two classes of re-
strictions : First, those imposed by congress, and contained in sec-
tion 5219, Eev. St» ; and, second, those imposed by the constitution of
the state of Ohio. If the act under which the assessment was made
exceeds any of thèse restrictions it is invalid, at least to the extent of
the excess. The valuation of shares in national banks, under sec-
tions 2765 and 2766, Eev. St. Ohio, quoted above, is fixed by deduct-
ing from the resources of the bank, its liabilities, and also the value of
the real estate, included in the statement of resources, as the same
stands on the duplicate. Thèse are the only déductions.
It is urged on behalf of the complainant, that, by the constitution
and statutes of Ohio, taxation is limited to tangible property, subject
to ownership, and capable of definite money valuations, and that cor-
porate franchises are not recognized as subjects of taxation. To thèse
propositions, as stated, we agrée, and, in our opinion, they are recog-
nized by the législature of Ohio in providing, by the law already re-
ferred to, for the taxation of shares in national banks. Nothing is
taken into aocount, in the valuation of the shares for taxation, but
the tangible property of the bank. From the sum of its resources is
deducted the sum of its liabilities, and the assessed value of its real
estate. The remainder is divided by the total number of shares, and
the quotient is the amount which the law fixes as the taxable value
of each share.
It is also urged that the taxable property of corporations in Ohio is
taxed on valuation, like the property of individuals, and not otherwîse,
and that shares in any corporation are considered and treated as
EXCHANGE NAT. BANK V. MILLEE. 377
"portions" of the taxable property of the corporation, and not other-
wise, and are not required to be listed by the owner when the prop-
erty of the corporation is listed. The constitution of Ohio déclares
that the property of corporations shall be subject to taxation the same
as the property of individuals, (art. 13, § 4,) and the law (Eev. St.
Ohio, § 2746) exempts from taxation the shares of the capital stock of
any eompany, the capital stock of which is taxed in the name of such
Company. If the taxation of the property of the corporation be re-
garded as indirect taxation of the shares, it is, perbaps, trne that the
shares are eonsidered and tceated as "portions" of the taxable prop-
erty of the corporation, but the direct and proper view is that the
property of the corporation, in the case stated, is taxed, and the shares
are exempt. In cases where the property of the corporation is not
taxed we do not agrée that the shares are eonsidered and treated as
"portions" of the taxable property of the corporation.
By section 2736 of the Eevised Statutes of Obio each porson list-
ing property is required to include in his statement ail investments
in bonds, stocks, joint-stock companies, etc., in his possession. Sec-
tion 2737 provides that such statement shall truly and distinctly set
forth the amount of ail moneys invested in bonds, stocks, joint-stock
companies, etc., and section 2739 provides that investments in bonds,
stocks, and joint-stock companies shall be valued at the true value
thereof in money. Thèse sections presoribe the standard for the valu-
ation of shares for taxation. It is their true value in money, and not
the proportion which they bear to the taxable property of the corpo-
ration. If the property of the corporation is taxed, the shares are
exempt. But congress does not authorize the property of national
banks, exeepting their real estate, to be taxed, and it cannot be taxed
without authority from congress. It does permit the taxation of shares
as the property of their owners or holders. And one of the points
decided by the suprême court of Ohio, in Frazer v. Siebern, 16 Ohio
St. 614, is that shares in national banks liable to taxation in the state
of Ohio "are to be understood as the individual property or choses of
the stockholders, as contradistinguished from aliquot parts of the
capital and property of the bank, and as such may be taxed at theirfuU
value, without déduction for the franchise, or for real estate otherwise
taxed, or for untaxable bonds owned by the bank." We do not see
how language could be more explicit.
In Bradley v. Bauder, 36 Ohio St. 28,the question was whether a per-
son residing in Ohio and owning shares of stock in a foreign corpor-
ation was required to list the same for taxation, notwithstanding the
capital of the corporation was taxed in the state where the corpora-
tion was located. The argument was that capital of the corporation
was invested in property taxed in the name of the corporation ; that
the shares only represented proportions of that property ; and, there-
fore, that taxing the shares was, by another mode, taxing the prop-
erty of the corporation. But Judge Boynton, pronouncing the opinion.
S78 FEDBBAL BEPOBTZB.
said; "Thîs argument, however plausible, bas never met with favor
from the courts," and the legality of the tax upon the shares, as prop-
erty, distinct and separate from the property of the corporation, and
therefore not "portions" of the eame — was afSrmed.
In Wagoner v. Loomis, supra, JmlgQ McIlvaine intimâtes, on page
&80, that the officers of the law yiolated their sworn duty in placing
the national bank shares of the plaintiff in error on the duplioate at
their par value, "instead of their true value in money, (as the con-
stitution requires,). which was 125 per cent, of their par value."
In each of thèse cases there is a clear récognition that the shares
are entirely digtinct, as taxable property, from the property of the
corporation, and in Frazer v. Siebern, and in Wagoner v. Loomis, that
intangible constituents of value — as the franchise — may be included
in fixing the true money value of the shares for taxation. But by the
law under which the shares of the complainant were valued for tax-
ation everything intangible is exoluded. The aggregate tax value of
all.the shares lis equal to the net value of the capital of the bank, less
the, assedsed value of its real estate. The non-taxable bonds owned
by the bank are not excluded. How that affects the validity of the
assessment is a question which we shall now consider.
Congfess authorizes taxation upon the shares in national banks by
the States within whieh they are located, under two restrictions :
First, "that the taxation shall not be at a greater rate than is as-
sessed upon other moneyed capital in the hands of individuals within
suoh state;" and, second, "that the shares of any national banking
association, owned by non-residents of any state, shall be taxed in
the city or town where the bank is located, and not elsewhere. The
real estate of the bank is also taxable as other real estate. Eev. St.
§ 6219. By section 3759, Rev. St. Ohio, the county auditor is re-
quired to allow to.every individual banker, and to every unincor-
porated bank, in addition to the crédits allowed in the valuation for
taxation of national bank shares, "the average amount of United
States government, and other securities that ar« exempt from taxa-
tion," held by such banker or unineorporated bank. Wherefore, it is
argued that the taxation upon the national bank shares is in viola-
tion of the first restriction imposed by congress, in that it is "at a
greater rate than is assessedupon other moneyed capital in the hands
of individual citizens." No complète définition of other "moneyed
capital" bas been given. It must, however, be held to mean other
taxable moneyed capital. Otherwise, the law of congress, permittiug
taxation of the shares, would defeat itself, for they could not be taxed at
a greater rate than individual investments in United States bonds,
which are exempt. Unineorporated banks and individual bankers
can be taxed only upon their property. The statement they are re-
quirdd to make and return to the auditor shall, the law says, set forth
not only their taxable property, but also United States bonds and
other non-taxable securities held by them. The auditor is required
EXCHANaB NAT. BANK ». MILLES. 379
to deduct froin the statement so made and- returned that' which t^e
state has no power to tax. The statuts créâtes no exemption. It
lays hold upon every item of property which it can reach, and taxes
every item which it can tax, allowing only the crédita allowed to other
individual tax-payers. The auditor, acoordingly, in fixing the amount
for taxation, deducts from the statement, which the law compels the
unineorporated bank and the individual banker to make, the securities
which the state could not tax if it would. If it were material to in-
quire why the law requires that non-taxable securities ehall be in-
cluded in the return, the answer might be suggested by sections 139
and 1522 of the Eevised Statutes of Ohio, relating to the statistical
duties of the secretary of state and of asaessors. Every tax-payer is
reqnired, at the time of listing his property, to make to the assessor a
verified statement, which shall include, among other things, "the
amount of United States bonds owned, the amount of legaï tender
notes or money exempt from taxation, and the amount of state bonds
or certificates." As the unineorporated bank and the individual
banker make their returns to the auditor, it is provided that those
returns shall contain the items which the assessor, in thé discharge
of his statistical duties, is required to take from every individual tax-
payer.
Unless the taxation on the shares in national banks is indirectly a
tax on the property of the bank, there is no discrimination in favor
of the individual banker and the unineorporated bank. But in Van
Allen V. The Assessors, 3 Wall. 573, the suprême court of the United
States deeided that "the tax on the shares is not a tax on the capital
of the bank. " They state, as familiar law, that "the corporation is
the légal owner of ail the property of the bank, real and personal,"
and that the interest of the shareholder is "a distinct, independentin-
terest or property, held by the shareholder like any other property
that may belong to him," and that "it is this interest which the act
of congress has left subject to taxation by the states." Chief Justice
Chase, for himself, and Associate Justices Waynb and Swayne, in a
^issenting opinion, argued with great power that taxation on shares
in national banks, without référence to the amount of their capital
invested in bonds of the United States, was "actual, though indirect,
taxation of the bonds," but the holding by the majority of the court
was affirmed in Peojde v. Com'rs, 4 Wall. 24-4, and has since re-
mained as settled law, so that the disâenting opinion of the chief jus-
tice only strengthens the authority of Van Allen v. The Aesessors. In
People V. Com'rs, the only question before the court was whether the
holder of the bank shares was entitled to deduct from their value a
due proportion of the sum which the bank liad invested in govern-
ment bonds. This was deeided in the negati e. Mr. Justice Nelson,
who pronounced the opinion of the courte sail that "the meaning
and intent of the law-makers was that the rate of the taxation of the
shares should be the same, or not greater, than upon the moneyed
360 FEDEBAL BEFOBTEB.
capital oî the individual citizen which is subject or liable to taxation.'
Eliminating from the return made by the unincorporated bank or
individual banker, every item of property and of moneyed capital ex-
empt from taxation, is not deducting, nor is it discriminating in favor
of such bank or banker and againat the holder or ownerof shares
in a national bank. What is such discrimination is clearly showu in
People Y. Weaver, 100 U. S. 539. That case was taken to the su-
prême court of the United States from the court of appeals of New
York. Mr. Justice Milles, delivering the opinion, said :
"It cannot be disputed, — it is not disputed hère,— nor is it denied in the
opinion of the state court, that the eflect of the state law is to permit a citi-
zen o£ New York, who bas money capital iavested otherwise than in banks,
to deduct from that capital the sum of ail his debts, leaving the remainder
alone subject to taxation; while he whose money is invested in shares o£ bank
stocks can make no such déduction. Nor, inasmueh as neariy ail the banks
in that state, and in ail others, are national banks, can it be denied that the
owner of such slmres who owes debts is subjected to a heavier tax on account
of those shares than the owner of moneyed capital otherwise invested who
also is in debt, because the latter can diminish the amount of his tax by the
amount of his indebtedness, while the former cannoL"
In accordance with thîs view, the judgment of the state court was
reversed. It was within the power of the législature of New York to
allow or to disallow a déduction from the listed value of the property
of the tax-payer equal to the amount of his indebtedness; and to
allow it to one and to refuse it to another was, by intentional discrim-
ination, to make the taxation unequal. But in the case of an unin-
corporated bank, or of an individual banker in Ohio, the state levies
its taxes upon every dollar's worth of property which it has power to
tax, at the same rate and by the same method as in the taxation on
national bank shares, leaving untouched only the property which it
has not power to tax.
It is claimed that 'upon a proper application of the décision in
Frazer v. Siebern, supra, the assessment must be held illégal. We
do not so think. The act of congress then in force, authorizing tax-
ation upon shares in national banks, contained the following restric-
tion not to be found in the présent law: "That the tax so imposed
under the laws of any state, upon the shares of any of the associa-
tions authorized by this act, shall not exceed the rate imposed upon
the shares in any of the banks organized under authority of the state
where such association is located." The state of Ohio imposed no
tax upon shares in the state banks, which were then in existence.
On the contrary, by the fifty-ninth section of the act of 1861, then in
force, they were expressly exempted. But the state banks them-
selves were taxed upon their capital, subject to a déduction for the
value of their real estate, and of their non-taxable bonds of the
United States, while the tax on shares in national banks was upon
their nominal or par value without any déduction for real estate,
which was taxed separately against the banks as real estate, and
EXCHANOE NAT. SANS V. MILLBS. 381
without déduction for United States bonds owned bjthe banks. The
court, recognizing that the équivalent taxation neoessary to justify a
tax upon shares in national banks might be either upon the shares
in the state banks and assessed against the shareholders, or upon the
capital of the bank and assessed against the bank itself, provided
only that it be équivalent, held that "the tax against the owners of
shares in the national banks must not exceed that imposed, in some
form, upon the state banks or their stockholders." And, finding that
the tax upon the shares in the national banks was in excess of that
assessed against the state banks, the court eujoined the collection of
the excess.
As we bave already found that the limitation in the présent act of
congress is, in effect, that the taxation on the shares shall not be at
a greater rate than is assessed upon other taxable moneyed capital,
it foUows that the failure to levy a tax against a citizen of the state,
whether a banker, a manufacturer, a merehant, or a capitalist, upon
property or investments whioh the state bas no power to tax, does
not make out a case of discrimination against the owner or holder of
shares in a national bank.
Our conclusion is that the bill must be dismissed, and it is so ordered.
PowEE OF States to Tax. National banks, as such, being instrumentali-
ties of the government, are not liable to taxation by the states.i Such banks
dérive their authority to do business in the states by virtue of a United States
statute, whieh is suprême law.^ Their franchise is not liable to state taxa-
tion, nor can the state authorize its municipalities to exact from thetu license
taxes for doing business within their limits.' A city eannot tax the business
of a bank which might be the fiscal agent of the fédéral government, although
it may tax its property and the shares of its stockholders.* Congress may per-
mit states to tax national banks,' and its shares held by individuals,' and this
althoug,h its capital may be invested in bonds or other securities of the United
States;' but the permission of congress is a prerequisite to such authority.* A
state can impose only such a tax on national banking corporations as is
authorized by the act of congress creating tliem, and that act only authorizes
IMcCnlloch V. Marylana, 4 Wheat. 316 j Os- v. Montgomery Co. M P». St. Hâj Anstln T.Bos.
born T. Bank of U. 8. 9 Wheat. 738; Bank of ton. 96 Mass. 369; City of Utlca v. Churchill, 43
Commerce V.New York, 2 Black, 620; Bank Tax Barb. ESfl; People v.Coin'rs, 4 Wall. !M4; Nat.
Cases, 2 Wall. 200; Pittsbnrg v. Nat. Bank, 65 Bank v. Com. 9 Wall. 353; First Nat. Bank v.
Pa. St. 46; Collins V. Chicago, 4 Biss. i72. Douglas Co. 3 Dill. 298, 330; Wright v. Stiltz, 27
i Carthage T. First Nat. Bank of Carthage, 71 Ind. 338; Hubbard T. Sup'rs, 23 lowa, 130.
Mo. 609; Van Allen V. Assessors, 3 Wall. 573; «Nat. Bank v. Com'rs, 9 Wal'- 353; People v.
Bradley v. People, 4 Wall. 469; Lionberger V. Br8aiey,39 III. 130; St.LonIsNat. Bank v. Papin,
Ronse, 9 WîII. 468; Tappan v. Nat. Bank, 19 4 DUI. 29; CJoddard v. Knlow, 1 Nott & McC.
Wall. 490 ; Hepburnv SohoolDIrectors, 23 Wall. 46; Stetson v. Bangor, 66 Me. 274; State v.
480 ; Second Nat. Bank v. Caldwell, 13 Fed. Rep. Haight, 31 N. J. 399 ; State v. Hart. Id. 431.
429. TPeopIe V. Com'rs, 4 Wall. 259; Wright v.
5 Carthage T. First Nat. Bank of Carthage, 71 Stiltz, 27 Ind. 233; St. Lonis B. & S. Ass'n T.
Mo. 609 ; Nat Bank t. Mayor, etc., 8 Helsk. 614. LIghtner, 47 Mo. 393. Contra, Whitney v. Madi-
«Johnston t. Maçon, 62 Ga. 660; Maçon T. ion, 23 Ind. 331.
FIrst Nat. Bank, 69 Ga. 648; Maçon v. Maçon Sav. » People v. Weaver, 100 U. S. 643 ; McCuIIocl
Bank. 60 Ga. 133. T. Maryland, 4 Wheat. 316; Osborn r. Bank of
6 Van Allen r. Assessors, 3 Wall. 673; 33 N. Y. U. S. 9 Whent. 73? ; Weston v. Charleston, 2 Pet
161 ; Frazer v. Seiberu, 16 Ohlo St. 614; Mintzer 449; People v. Assessors, 44 Barb. 143.
382 - :■ 'FEDEBAIi BEPOBTEE. '
a tax on the shares în such bankâ, and not ou its capital stock.* States hâve
the power to tax national banks . only at a rate, in the manner, and on the
partieular conditions authorized by congress;^ and the requirements of the
act niust be obeyed in good faith, and the state tax must be construed in con-
nection with the act.' The permission given by the national' banking act to
tax national banks, removes aHy iinplied exemption that might otlierwise
exist.^
Real Estate. ïlie state may tax the real estate and the shares of nar
tional banks.6 TJnder the Revised Statutes the state ia left free to exercise the
power of taxation over national banks,asse3sing the saine upon the real prop-
erty of the bank, or upon the shares of its capital stock, at the élection of the
state, in accordance with the requirements of the state constitution and laws,
and only in conformity with the rules applicable to citizens and corporations
of the state.* Keal estate is taxable by state authority, and the separate shares
of its capital stock, as the personal property of tlie holders of such shares, may
be taxed by the state or its municipal corporations, so long as the tax is not
at a greater rate than is assessed upon other raoneyed capital in the hands of
individual citizens of such state.^ Real estate ownéd by a national bank
should be assessed as roalty in the township where It is situated, and not as
a part of the capital stoclc of the bank.* ïhe banking office and lot lawf ully
owned and occupied as its place of business by a national bank is not liable
to assessment and taxation as real estate eo nomine against the bank.*
Capital not Taxable. The capiitalof a national bank is not taxable by
the state.i" Capital stock as such cannot be assessed. The only way stock
can be reached is by assessment of the différent shares of stookholders," and
an assessment on the shares in gross against the bank is not authorized and ia
illégal. 12 j^ bank is not liable to taxation on its capital under a statute which
requires owners of property to return it for taxation. It does not own the
shares held by individuals,'' but it is the owner of ail the property of the cor-
poration, real and personal;" but it is not liable for either state or municipal
taxes on the shares of stock not owned by it, but owned by individual stockhold-
ers.i» If the shares of a national bank, when in the hands of a receiver, bave
any value, they are taxable in the hands of the holders or owners ; but the prop-
erty held by thé receiver ia exempt to the same extent that it was before his
appointment.18 Such property cannot be subjected to sale for the payment of
the deniand of a créditer against the claim for the property by a receiver of
the bank subsequently appointed." The taxation by a state of the capital stock
1 Carthage v. First Nat. Bank, 71 Mo. 509 ; Van St. 221 ; People y Com'rs of Taxe», 80 N. Y. 673 ;
Allen y. Asaessors, 3 Wall. 673 j Bradley v. Peo- and cases.
pie, 4 Wall. 459î Lionberger v.House, 9 Wall. WNat. Commercial Bank T. Mobile, 62 Ala.
468! Tappan v. Nat. Bank, 19 Wall. 490; Hep- 295î People v. Com'rs, 4 Wall. 2M; Bradiez ▼.
burn V, School Director!, 23 Wall. 480. People, 14. 469 ; Sait Lake City Bank v. Golding,
28umter Co. V. Nat. Bank, 62 Ala. 464; Nat. 2Dtah,l;SnmterCo.v. OainesTllleBank,62 Ala.
Commercial Bank v. Mobile, H. 284. 464; F'rst Nat. Bank v. Douglas Co. 3 Dlll. 330,
SFirst Nat. Bank v. St. Joseph, 46 Mioh. 626} llCollins T. Chicago, 4 Bis». 472.
S. 0. 9N. W. Rep.83«. WNat. Commercial Bank v. Mobile, 62 Ala.
40nlonNat. Bank V. Chicago, 3 BIss. 83. 284.
(Nat. Commercial Bank T. Mobile, 62 Ala. ISWaco Bank v. Roger». Si Tex. 606; NortU
2PlS Sal*, Lake CTty Bank v. Golding, 2 Utah, 1; Ward Bank T. NeWi\rk, 40 N. J. La w, 658; Waite
Sumter Co. v.Gainesville Bank,6! Ala. 464 ; First v. Dowley, 94 U. S. 627 ; Snmter Co. v. Galnesrille
Nat. Bank v. Douglas Co. 3 Dlll. 330. Bank, 62 Ala. 468; Van Allen v. Assessors, 3
«Nat.CfmmerpialBankv.Mobile,6> Ala.284. WaU.S84.
»Lottln V. Citizens' Nat. Bank, &'> Ind. 341. 14 Van Allen v. Assessors, 3 Wall. 684 : Snmter
SRloe Co. Com'rs v. Citizens' Nat Bank, 93 Co. f . GalnesviUe Bank, 62 Ala. 468.
Minn.28i. lISWncoBank v.Roger8,6lTex. 606.
'Second Nat. Bank T. Caldwell, 13 Fed. Rep. WBosenbl'att v. Johnston, 104 U. S. 463,
430; Lackawanna Co. V. First Nat. Bank, 94 Pa. nWoodward v. EUsworth, 4 Colo. 583; Nat.
Bank v. Colby, 21 Wall. 609.
EXCHANOE : NAT. ^ANK r. piLLER. 383
of a national bank invested in United States securities will be restrained.i but
injunction will not lie to restrain the collection of a tax illegally assessed by
the municipal authorities upon the shares of a national bank in gross, instead
of againat tJie individual shareholders, though such municipal corporation be
insolvent, as there are ample remédies at law.^
Shaees of Stock Subjeot to Taxation. 'Sbaresof national bank stock
ave subject to taxation by the state* agalnst the shareholders;^ They may be
taxed at the place where the bank is situâted.^ They are exceptions to
the rule that personal property follows the owrier, for tliey are by law made
taxable at the situs of the bank.« The state in wliich the national bankis
situated has the exclusive right to dérive revenue from the shares of such
bank, no matter wbere the shareholders may be domiciled.' A state may
authorize the assessment in the city or town within the same state where the
owner résides,* the stockholder having the riglitto be assessed at his domicile
within the state in which the bank is located.* The mode by which the tax
shall be assessed and collected, and the place whereit shall belaid on résident
stockholders, is lef t to the dii^cretion of the législature of the state in which the
bank is located." Under the gênerai state statutes the stock belonging to an
inhabitant of a school-district in a town other than that in which the bank is
situated, cannot be taxed foi: the purpose of defraying the expense of build-
ing a school-house in the district." 'W^here the législature declared that the tax
on the shares of non-resident stockholders shall be assessed against and paid
by the bank, if this were in fact unjust to the résident stock|iolder3 the rem-
edy for the injustice would bewith the législature. '^ The fact that a national
bank in one state keépsa clerk in another state authorized to reçoive deposits,
does not render the bank taxable to the latter state. i' States may tax dlvi-
dends declared to holders of national bank stock ; " but the consent of the
comptroUer of the treasury being uecessary for an increase of shares of ■ the
stock, new shares issued under a vote of the corporation are not assessable
until the certiflcate of the comptroUer of his approval shall be issued."
Rate. The only restrictions imposed by the act of congress on the power
of the States to tax national bank shares is that it shall not be at a greater
rate than is assessed on " other moneyed capital " in the hands of individual
citizens of the state, and that shares owned by non-residents shall be taxed
in the city or town Where the bank is located.^' "Other moneyed capital"
means money capital invested otherwise than in national banks." This re-
striction only requires that the amount of tax imposed and the System of as-
sessment applied to shares of the stock shall bé substantially the same as are
IFirBt Nat. Bank v. Donglas Co. 3 Mil. 298. «North Ward Nat. Bank v. Newark, 40 N. S.
SNat. Commercial Baok v Mobile, «a Al». Law. 658 ; North Ward Nat, Bank v. Newark, a9
284. N. J. Law, 380 j HoweU v. CasBopolls, 35 Mlch.
SHowell T. Cassopolls, 35 Mich. 471; Kyle T. 471: Kyle v. Fay^ttevlUe, 75 N. G. 445; Bule v.
Fayetteville, 76 N.C. 44S ; Euie v.Fayetteville, 79 Sume, 7U N. C. 267.
N. C. 267 ; North W^ird Nat. Bank v. Newurk, lONorlh Ward Nat. Bank v. Newark, 39 N. J.
39 N. J. Law, 380; Nat. Bank v. Com. 9 Wall. Law, 38i|.
353 ; Lionberger v. Bouse, Id. 468 ; Aostin T. Bos. H Little T. Little, 131 Mass. 367.
ton, 14 Allen, 359. laNorth Ward Nat. Bank v. Newark, 40 N. J.
ISnmter Oo v. Gulnesville Bank, 62 Ala.464. Law,66a; Staie v. Branin, 38 N. J. Law, 4:i4.
BFirst Nat. Bank T. Smith, 65 m. 44; Bake.'V. ISNat.State Bank y. Pierce, 18 Alb. Law J, 16.
FirstNat.Bank, 67111. 297. UStatey. Collector, 2B»iley, 664.
6Tappan v.Mprch. Nat. Bank, 19 Wall. 490; l5Charleston v. i>eople'8 Nat. Bank, C S. C. 103.
Baker v. First Nat. Bank, 67 111. 297; Prov. Inst. . WLionberger v. Rouse, 9 Wall. 475.; Pollard v.
V. Boston, lui M^ss 67;6; McLaughlin v. Chad- State, 06 Ai». «28; MiJler F. Heilbron, 68 Cal. 133;
well, 7 Heisk. 389. , See 15 St. at Large, 34^ North Ward Nat. Bank v. Newark,, 39 N. j. Law,
7Siimter Co. t. Nat. Bank of Gainesville, 62 380; Ruggles v. tond da Lac, 63 Wis. 439.
Ala.469, Nat. Bankv. Com'rs, 9Wall.356. . HMiller v. Heilbron, 68 Cal. ISJ; People V.
8Austin V. Boslou, 14 Allen, 353. Weaver, 100 U.S., 543. .
884 ÏBDEBAL BSPOBTBB.
imposed and applled to other moneyed capital.' Where différent rates of tax-
ation are imposed upon différent classes of moneyed capital the rate of taxation
on national bank sbares shiould not exceed the rate imposed on shares in 8tat«>
banits.'* In the taxation of national bank shares it must appear that the as-
sessors acted uuder son^e agreement or rule which necessarily tended to tax
such shares at a greater rate than is assessed on other moneyed capital, to ren-
der the assessment void.' If the amount assessed on them ia governed by tbe
same percentage on the valuation as that applied to other moneyed capital,
the act of congress is satisfled.* Any System of assessment of taxes which
exacts from the owner of the shares a larger sum in proportion to their act-
ual value than it does from the owner of other moneyed capital valued in like
manner, taxes them at a greater rate within the meaning of the actof con-
gress."
Valuation. The actual and not the par value is the standard of taxation
of national bank shares,^ and such valuation is not affected by the fact that a
portion of the capital of the bank is invested in United States bonds ; ' and
the surplus fund which a national bank is required to reserve from its net
profits is not excluded in the valuation of its shares for taxation.* Ûnder
certain limitations, the shares of the national banks are taxable, with exclu-
sive référence to their value, and without regard tothe nature of the property
held by the bank as a corporation.» They may be lawf ully included in the
valuation of the personal property of the owners thereof in assessing state
taxes.i" The provision of the act of congress has référence to the entire process
of assessment, and includes the valuation of the shares, as well as the rate of
percentage charged thereon." Shares in national banks may be valued above
their par value. ^^ The actual value of the stock diminished by the proportionate
value of the real estate owned by the bank, furnishes the proper sum upon
which to assess the tax.i^ The state cannot évade the restriction contained in
the act of congress, by requiring the value of the property to be added to the
value of the shares." Where the value of the real estate held by the bank was
not deducted, the shaies are subjected to double taxation, and the tax was in-
valid.''
Kedtjction from Valuation. Wiiere other moneyed corporation was
taxed, but a réduction to the whole amount of the owner's indebtedness was
to be made before assessment, and no such déduction was allowed to the hold-
ers of national bank stock, the tax upon such shares is invalid." Under a
statute making taxable ail crédits in excess of the debts of the person taxed,
it is not necessarily in conflict with the act of congress providing that na-
tional bank stock shall not be taxed at a greater rate than other moneyed
capital, even though the latter are taxed for their fuU value, without deduct-
IPoIlardv. state, 65 Ala.SZS. 10 Van Allen T. Asflessors, 3 Wall. 673; People
SCity Nat. Bank T. Padncah, 2FIippin,61. T. Com'ra, 4 Wall. 244; Nat. Bank v. Com. 9
SFirst Nat.Bank V. Farwell. 7 Fed. Kep. 618; Wall. 353; Tappan v. Mercli. Nat. Bank, 19
S. C. 10 Biss. 270. Wall. 491 ; People v. Com'rs, 94 V. S. 415 ; Waite
iPelton V. Nat. Bank, 101 U. S. 143 ; People T. v. Dowley, 94 U. S. 627; Adam» T. Nashville, 95
Weaver, 100 U. S. 639. U. S. 19; Mciver v. Eoblnson, 53 Ala. 466 j Nat
SPoU-ird V. State, 65 Ala. 632; Pelton T. Nat. Commercial Bank T.Mobile. 62 Ala. 296.
Bank, 101 U. S. 145. U People v. Weaver, 100 U. S. 639.
e People v. Com'rs, 94 D. S. 415 ; S. C. 67 N. T. W Pelton v. Nat. Bank, 101 U. S. 143.
Ô16; Van Allen V. Asseasors, 3 Wall. 673; People ispeoplev. Weaver, lOOU. 8.539; Sop'raof Al-
V. Com'ra of Taxes, 8 Hnn, 556. bany v. Stanley, 105 U. 8. 306; S. 0. 12 Fed. Rep
7ld. 87. Seo People v. Dolan, 36 N.Y. 69j Nat. Alb
«Stafford Nat. Bank v. Dover, 68 N. H. 316; Exch. Bank v. Hills, 6 Fed. Rep. 261.
First Nat. Bank V. Peterborough,66 N. H. 38; U Pelton T. Nat. Bank, 101 U.S. 143.
Nat. Bank ▼. Com'rs, 9 Wall, 363; People V. 16 Nat. Bank v. Kimball, 103 U. S. 732.
Com'rs, 67 N. Y. 516 ; S. C. 94 C. 8. 416 1» City Nat. Bank V. Faducab, 2 Flippin, 61.
«Eviinsvllle Nat. Bank v. Brltton, 105 U. S.
'i,tb; Van Allen v. Assessors, 3 Wall. 673.
EXCHÀNaE NAT. BAKK V. IULIiBB. 886
ing indebtedness.* The provisions which authorize the tax-payer to deduct
his indebtedness from the amount of money loaned and solvent crédits, tax-
ing oiily the excess, and exempts from taxation of the capital stock of incor-
porated companies ereated under any law of the state such portion thereof
as may be invested in property, and taxed otherwise as property, and lim-
its municipal taxation upon such corporations, in their opération apon mon-
eyed capital discriminate unfavorably against shareholders in national banks,
and are to tliat extent violatlve of the act of congress.^ Shareholders are not
entitled to any allowance for such of the capital and surplus of the bank as
may be invested în government bonds ; ' as a state statute taxing bank stock
must levy the tax on the shai-es of stockholders, as distinguished from the
capital of the bank invested in fédéral securities.^ Congress may subject the
shares of national bank stock to state taxation, notwithstanding the capital
is invested in national securities.» The shares of stock are property, separate
and distinct from the property of the corporation which they represent.*
Deduotiok of Indebtedness. Any statute is in conflict with the re-
strictive clause of the act of congress in so far as it does not permit a stock-
holder to deduct the amount of his just indebtedness from the assessod value
of his stock, while the owners of ail other taxable personal property may de-
duct debts from the value of their property.' When the shareholder bas no
debts to deduct, the law provides a mode of assessment ror him which is not
in conflict with the act of congress; the law in that case can be held valid,'
and he cannot recover back the tax paid pursuant thereto. If he bas debts,
the assessment excluding them from computation is voidable, but the assess-
ing officers act within their authority until they are duly notifled that he is
entitled to déduction of such debts,» and notice of debts must be given to the
assessor.'" If the assessing offlcer proceeds after such notice and acts in vio-
lation of the act of congress, the tax-payer may take the requisite steps to
secure the déduction, and when secured the residue of the state statute re-
mains valid.ii Where, under the statute, the stockholder has presented to the
proper board of assessors his affldavit showing that his personal property
subject to taxation, including such shares, after deducting theref rom his just
debts, is of no value, and they refuse, on his demand, to reduce his assess-
ment of the shares, an iujunction should be awarded to restrain the collection
of the tax. 12 In the absence of évidence that the debt claimed for déduction
waa not a just one and enforceable against the party taxed, he is entitled to
hâve it deducted, and this, although the transaction creating the debt was a
" device to escape assessment and taxation ;" so held, in a case where the debt
was ereated in the purchase of non-taxable securities.i'' Where the assess-
IFirst Nat. Bank v. St. Joseph, 48 Mich. 626j «Snp'rs of Albany T. Stanley, 12 Ped. Rep. 90î
S. C. 9 N. W. Rep. 833. Anatla r. Boston, 14 AUen, 367. to the saroe ef.
» PoUanl T. State, 65 Ala. 628. tectf Peopls v. Bnll, 46 N. Y. 67; Gtordon t.
s First Nat. Bank t. Farwell, 7 Fed. Eep. 618. Cornes, 47 N. V. 608 j Village of Middlelon, Ex
«Nat.Bank V. Com'rs, 9 Wall. 353. parle, 82 N. V. ] 96,
SMcCullochV. Maryland, 4 Wheat. 316; Wes. «Snp'rs of Albany v. Stanley, 106 U. S. 305;
ton V. Charleston, 3Pet.449;Colleetorv. Day, 11 HUla v. Nat. Exch. Bank, Id. 319; Evansvill»
Wall. 123; Ward T. Maryland, 12 Wall. 427; Van Bank v. Britton, Id. 322; S. 0. 10 Biss. 603; 12
Allen V. Assessors, 3 Wall. 693. Fed. Rep. 96.
• Kirtland v. Hotchkiss, 42 Conn. 433; Van Al. MSap'rs of Albany t. Stanley, 105 U. S. ;:05; S.
len T. Afisessors, 3 Wall. 673; Bradley v. People, C. 12 Fed. Rep. 1.
4 Wall. 459; Nat. Bank T. Com'rs, 9 Wall. 353. U Snp'rs of Albany T. Stanley, 105 U. S. 305;
TSup'rs of Albany v. Stanley, 106 U. 8. 3o5; Hills T. Nat. Exch. Bank, 105 U. S, 319; Evans.
Hills T. Nat. Exch. Bank, Id. 319; Evanslille ville Bank v. Britton, 106 U. S. 322; S. C. 10 Blss,
Bank t. Britton. Id. SUS; S. C. 10 BIss. 603; 12 603; 12 Fed. Rep. 96.
Fed. Rep. 96; Rallroad Tai Cases, 13 Ped. Rep. W Hills T. Nat. Kxch. Bank, 106 tJ. S. 319;
737; People v, Weaver, 100 U. S, 539, reversing ETansTlIle Bank T. Britton. Id.322; S. C. 10 Biss.
l.C; WilUanjs T. Weaver, 76 N. Y. 3J; and see 603; 12 Fed. Rep. 96.
Comraings ▼. Nat. Bank, 101 V. S. 183; Euggle» UPeople T. Hyan, 88 N. Y. 143.
T. Fond du Lac, 10 N. W. Rep, 666.
v.l9,no.6— 26
38Ô tKDBR&îi BBPOBTBR.
ment is not void, bnt only voidable, It must stand good fbr the assessment lu
each case which is not sliown to be in excess of the just debts of the share.
holder that shoiild be deducted.*
Eqtjality ani5 tÏNiFORMiTY. The restrictions on the power of the state
to tax national batik shares is intended to secure equality of valuation in their'
assessment, as well as equality in the rate of the tax after the assessment bas
been made.^ The rule that they should not be assessed higher than other mon-
eyed capital is not violated by taxihg them without déduction of mortgages,
iudgments, and other securities for money loaned, although. sorne capital is
subject to such exemption from taxation for other than state purposes;* s6
exempting from taxation money invested in state bonds, or city bonds, is not
an unfriendly discrimination.'' The act of congress is not infringed by a State
law which pro vides that ail personal property, including money and ail debts
owing by solvent debtors, and shares in national and state banlis, and other
corporations, shall be assessed at their true value and taxed at an equal raté,
even if it also provides that certain classes of property, including shares in
certain classes of corporations, shall be exempt from taxation.» The discrim-'i
ination must be " v^rith mone^'ed capital in the hands of individual cltizens ;"
a discrimination between shareholders in corporations, other than banks, is
not within the prohibition.* The rule or principle of unequal valuation of
différent classes of property, adopted by local boards of asaessors, is in conflict
with the constitution and works injustice to owners of bank shares ; ^ so CO
tax the shares in anational bank at their fuU value, while other property is
assessed at 30 or 40 per cent, of its value, is un just and uiilaviff ul, and the bank
may maintain an action to restrain the collection of such tax ; » the court will
not restrain the collection where the shares are taxable and no excessive val-
uation is complained of , although the offlcers arrived at correct resuHh by an
èrroneous method.^ Although for purposes of taxation the statutes provide
for the valuation of ail mOneyed capital, including shares of national banks,
at its true cash value, the systematic and intentional valuation of ail other mon-
eyed capital by the taxing offlcers fat below its true value, while the shares are
assessed at their true value,' is a violation of the act of congress, wliich prô-
scribes the rule by which they shall be taxed by state authority ; ^ and the
statute which establishes a nibde Of àssessments by Virhich shares are valued
higher in proportion to their real value than other moneyed capital, is in cou'^
flict, although no greater pereentage is levied than on that of other moneyed
capital." In such case, on the payment or the tender of the sum which such
shares ought to pay, under the rule established by that act, a court of equity
will enjoiq the state authoritles from coUecting the remainder;'^ but where
they are taxed at the same rate as other property, and the valuation of thèse
shares is at half their actual value, while that of some other property is at less
than half its value, a discrimination is not thereby shown.i* The validity of
a municipal tax on the shares of a national bank is not impaired by the faot
that the money paid for such stock may hâve been taxed for municipal pur-
poses to the same person.'*
DisoKiMiNA,TioN. A state law is not viôlative of the act of congress merely
on the ground that it allowed a "partial exemption" of a certain kind of
moneyed capital, which was designed to prevent a double burden of taxation,
IHlUsT. Nat.Kxci. Bank,12Fea.B«p.95. «M.
» Albany City Nat. Bank v. Malier, 6 Fed Rsp, «^t. Loals Nat. Bank T. Paptn, 4 Dlll. 29.
417. lOSecond Nat. Bank ▼. Oa)dwell, 13 Fed. Rep.
S Gorgas' Appeal, 79 Pa. St. 149. 432 ; Hepburn T. School-dist. ^ Wall. 480.
iPollard-r.Staté, 65Ala. 628; AdamsT.Nash. nteopla v.Com'rs, 69 N.Y.91; 8. 0.8 Hoii,
Tllle, 96 U.'S;i9. B36.
6Stratton v. Collins, 43 N. J. Law. B63. USt. Lonls Nat. Bank V. Papin, 4 DIU. 29.
• First Nat. Bank v. Waters, 7 Fed. Rep. 162. UClty Nat. Bank v.Paancah,2 Pllppln, M,
TCummings V. Nat. Bank, 101 U.S. 1&3. URichmond City T.Scott, 48 Ind. 668.
both of property Und debts secured by It,* The facfc that tWo bankS by tbeii"
charters are specially taxed, vrill not preelude taxation of the shares in the'
national banks by gênerai law; neither are the sliares to be excluded from'
taxation because some other classes of moneyed capital are exempted f rom '•
taxation by a law of limited application.^ A tax may be levied by an incor- '
porated city on the shares of stocii of a national bank at the same rate as on
real and personal property within the city, although there is still in existèncie
branches of the state bank, the shares of which arenot sabjeet to municipal-
taxation.^ Where there is no discriminatioa against such shares and in favor^
of other moneyed capital in the hands of individual citizens of the state, such
taxation is vaïid.* The act of congress of June 3, 1864, was not intended to
curtail the power of the state «n the subject of taxation, or to prohibit ex-
emptions of particular kinds of property,. but to protect corporations formed
under its authority from unfriendly discrimination by the state in the exer-
cise of their taxing powers.^ It was the intention of congress to prevent the
state, by hostile législation, from discriminating against national banks, and
to place ail bank shares, state and national, on a eommon level.^ The System
of assessment of bank shares, owing to the faot that the shares of différent
banks are differently rated, must necessarily be imperfect.' The law does not
require absolute accuracy where the shaireholders hâve the same rights as.
other individuala taxed for moneyed capital; they should look to the statutes
of the state for relief. « It is not sulficientj to invalidate the taxation, to show
that in the case of a single state bank, the shares of which are subject to a^
like taxation, that the assessors, either by mistake or intentioii, hâve showV
favor.'
Enfobcement ov PAYMEarr. Paymentof the tax imposed on bank shares
may be enforced."' The tax imposed piirsuant to statute becomes a lien upon
the shares taxed, and such lien continues till the tax is paid." It may be
made the duty of every national bank to pay for its stockholders the tax legally
assessed against their respective shares, whether the stockholders réside in
the state or not. '^ The state statute relating to the collection of taxes upon
bank shares doea not apply to shares belonging to the estâtes of deceased per-
sons.'* A bank may be compelled to disclose the amount of deposits due each
depositor, and a state law to that effect is enforceable." Where the statute
requires or permits the bank to pay the tax for the shareholder, as trustée it
is the proper complainant seeking relief against illégal exaction.'^ A statute
requiring the cashier to retum to the clerk of each town in the state where
shareholders réside, a list of shareholders résident therein, and the amount
paid out on each share, is valid.i*
Suit to Enjoin Collection. A shareholder who bas made affldavit and
demand for déduction of debts owed by him from the valuation of bis shares,
as required by law, may bring suit to enjoin the collection of such tax.'î^ And
iPoIlard T. state, 65 AÎa. 633; Hepbnrn T. USlmmons t. Aldrich, 41 Wls. 24Iî Van S!yke
School Directors, 23 Wall 480. T. State, 23 Wls. 655 j Baenall T. State, 26 Wls.
SLemley v. ComTs, 85 N. C. 382; Lionbergerv. 112.
Ronse, 9 Wall. 468; Tappan v. Muroh. Nat. Bank, lîNat. Commercial Bank v. Mobile, 82 Ala. 295 ;
19 Wall. 490; Providence Ins. Co. v. Boston, 101 Nat. Bank v. Com'rs, 9 Wall 363; Tappnu v.
Mass. 696. Meroh.Nat.Bank,19 Wall. 491) Waltev. Dowley,
8RiclimoadCltyT.Soott,48Ind, 568. 94 II. S. 627; Adams T. NashvlUe, 95 0, S. 19;
, «t«mley v. Com'rs, 85 N. 0. 37». Melvera v. Robinson, B3 Ala. 4S6.
BAdams v. NasUvilIe, 96 U. S. 19; People T. JSReverev. Boston, 123 Mass. 375,
Oom'rs,4 Wall.244 ; Hepburn V. Sehool Directors, MFlrst Nat. Bank v. Hughes, 24 Alb. I*aw J. 74.
23 Wall. 480. usNat. Bank v. Cnmmings, 101 U. S. 153; First
«Stanley T. Board of Sup'rt, 16 Fed. Rep, 483. Nat. Bank r. St. Joseph, 4$ Mlch. 62S.
Ild, MWaltev. Dowley,94n.S.627.
SId. 17 Hills T. Nat. Alb. Excb. Bank. 12 Fed. Rep.
«idi 93.
10 First Nat. Bank 7. Douglas Co. 3 Dill. 299.
888 tlDSBlIi BXPOSTliB.
where it îs shown that the affldavit and demand would hâve been nnavailing,
they may show, in an action by the bank brought on their behalf , the déduc-
tions to which they were entitled.* A national bank may, on behalf of its
stockholders, maintain a suit to enjoin the collection of a tax which haa been
unlawfuUy assessed on the shares by state authorities,* and on the ground of
an illégal assessment arising frora the failure to deduct from the valuation
the debts owned by the stockholders,' although payable in the flrst instance
by such shareholder, if a multiplicity of suits can be thereby avoided, or injury
to its crédit or business is anticipated.* Where the statuts requires or permits
the bank to pay the tax for the shareholder, as trustée, the bank is the proper
complainant seeking relief against illégal exaction.^ A bill to restrain the
collection of the state tax must show a statute discriminating against thera,
or that they are rated higher in proportion to actual valuation than other
moneyed corporations.» — [Ed.
1 HUls V. Nat. Alb. Ezch. Bank, 106 U. S. 319 i 101 U. 8. 163 ; Felton T. Nat. Bank, 101 D. 8. 143;
R. C. 12 Fed. Rep. 93; ËTunsTllte Nat. Bank T. EvansTille Nat. Bank v. Brltton, 105 U. S. 322.
Britton, 106 U. S. 322. See Sup'rs of Albany T. iCityNat. Bankv.Padacah,2Flippin,61. See
Stanley, 12 Fed. Rep. 82. Nat. Alb. Exch. Bank T. HUlB, S Fed. Rep. 243;
«Hills T. Nat. Alb. Ezch. Bank, 105 U. S. 319; reversed, 12 Fed. Rep. 93.
8. C. 12 Fed. Rep. 93; EvansTllle Nat. Bank T. »Nat. Bank t. Cnmmlngs, 101 C. S. 163, af-
Brltton, lOô U. S. 322. llrmed; Evansrille Nat. Bank t. Brltton. 105 V.
SNat. Alb. Ezch. Bank T. Hills, 5 Fed. Bap. S. 322; S. 0. 12 Fed. Rep. 93; Firat Nat. Bank t.
249 i Hilli T. Nat. Alb. Ezch. Bank, 106 U. S. 319 ; St. Joseph, 46 Mlch. 626.
8. 0. 12 Fed. B^p. 93 j Cammlnfi t. Nat. Bank, aoerman Nat. Bank T. Kimball, 103 V. S. 732;
HlUt T. Nat. Alb. Exch. Bank, 12 Fed. Hep. «3.
Mkmphis & L. B. B. Go., as reorganized, ». Dow.*
(OTrcwit Court, 8. D. Nm Tvrk. February U, 1884.)
Ui/TRA VtRES— Retentioii of Bbnefits.
A corporation cannot retain property acquired under a transaction ultra
vire», and at the same time repudiate its obligations under the same transac-
tions.
Corporations — Power to Contraot with Stockholdbrs.
A corporation is not precluded from contracting with its hondholders be-
cause they owa ail the stock.
BAMK — MoBTGAaB OF CoRPORATB FRANCHISE.
A corporation lawfully purchaaing its franchise bas implied authority to
mortgage it for the purchase money.
Bamb— Case Statbd.
A railroad corporation organized in Arkansas isaued bonds secured by trust
mortgage of its franchises and other property; the mortgage was foreclosed,
and a gcheme et reorganization adopted, in pursuance of which the company
conveyed ail its property to the trustées, and the bondholders formed a new
corporation, to which the franchises and other property of the old one were
conveyed by the trustées. The new corporation, thus composed entirely of the
original bondholders, issued its bonds to those bondholders, secured by mort-
gage of its franchises and other property; and the new bonds were received
m lien of the old. Afterwards portions of the stock passed into other bands.
Held, that the bonds constituted a valid obHgation, notwithstanding the stock-
holders of the contracting corporation were the contractées, and notwitstand-
ing a provision in the constitution of Arkansas forbidding private corpora-
tions to issue stock or bonds except for value actually received.
>8ee 7 8up. a. Bep. 482, and 20 Fed. Bep. 260, 703.
MEHFHIB A L. B. B. 00. V. OOW. 889
In Equity.
Dillon & Swayne, for plaintiff.
Platt é Bowers, iot défendant.
Wallaoe, J. The complainant's bill is filed against the trustées
and holders of the mortgage bonds of the complainant for $2,600,-
000, and the mortgage upon its corporate franchises and property for
eecuring the same, executed May 2, 1877, seeking to annul the bonds
and mortgage, upon the ground tbat they were issued and executed by
the complainant without corporate power in that behalf.
A brief statement of the facts relating to the création of the mort-
gage bonds, their origin, considération, and purpose, will serve to
présent the légal questions involved. The complainant, created under
a speo .al act of the législature of Arkansas, is a reorganized corpora-
tion which has succeeded to the property and franchises of a former
corporation of the same name under the foreclosure of a mortgage of
that corporation, and a conveyanse i nder the decree of foreclosure.
By the terms of that mortgage, and by the provisions of the decree of
foreclosure in conformity therewith, it was provided that if the trust-
ées named in the mortgage should be requested so to do by a major-
ity of the holders of the bonds secured thereby they might purohase
the property, and, in that case, no bondholder should hâve any claim
to the promises or the proceeds thereof, exeept for his pro rata
share, as represented in a new corporation or company to be formed,
by a majority in interest of said bondholders, for the use and benefit
of the holders of the mortgage bonds. The trustées purchased at the
sale, and thereupon the bondholders proceeded to organize the prés-
ent corporation. There was due to the holders of the old mortgage
bonds $2,600,000 of principal, and $1,300,000 of unpaid interest, and
the scheme of reorganization contemplated the acceptance by thé
bondholders of the new mortgage bonds in place of their old ones, and
of the capital stock in place of their acorued and unpaid interest.
Aocordingly, by the terms of the reorganization agreement, the cap-
ital stock of the new corporation was fixed at $1,300,000, divided into
13,000 shares of $100 each, and was declared to be full paid; and
by the same agreement the trustées who had purchased at the fore-
closure sale were directed to transfer the property and franchises
purchased by them to the new corporation, upon the condition, among
others, that the new corporation should exécute and deliver to said
trustées the new mortgage bonds for $2,600,000, now sought to be
set aside. Thereupon — the new corporation having agreed to accept
a conveyance of the property and franchises of the old corporation,
pursuant to the terms of the reorganization agreement — the trustées
conveyed the same to the new corporation, the deed of conveyance
reciting the conditions upon which, as trastees, for the owners of tbe
outstanding mortgage bonds, they were authorized to make such con-
veyance, and further reciting the acceptance of such conditions by the
new corporation. The corporation accepted this conveyance and took
890 MÏPEBA.ÎJ.BEP09TBB.
possession under it. Every certificate of shares of stock îssued by it
contains a récital that the holder takôs his Stock subjeet to the mort-
gage bonds in question. The new mortgage bonds were issued and
delivered to the trustées for the bolders of the outstanding mortgage
bonds, and were distributed by the trustées, pro rata, to the holders
of those bonds.; The capital stock was also apportioned among the
holders of thèse bonds, pro roita, and certificates were delivered for the
shares to whioh eaeh bondholder was entjtled.
After the reorganized corporation had operated the railroad for
several years, and early in the year 1880, the majority of the stock
was acquired by Messrs. Margrand, Gould, and Sage, in the interest
of the St. Louis, Iron Mountain & Southern Eailway Company. The
object seems to bave been to aoquire oontrol of the corporation and
subordinate its management to the interests of the Iron Mountain
Company. The parties who thus acquired control now control the
corporation, and, speaking through it, insist that the mortgage bonds,
which were the considération of the transfer of the property to the
corporation, are void, and should be set aside. The case, then, is
this : The complainant is a corporation which was brought into life
by a body of preditors of a pre-existing corporation, who had suc-
ceeded to ail the property thereof, and who proposed to convey such
property to the complainant upon receiving, among other considéra-
tions, the mortgage bonds in suit. The complainant assented to this
proposition, accepted a conveyance of the property, and executed its
mortgage bonds. It asserts now that although it had power to ac-
quire the property it had no lawf ul power to pay for it in the terms
and manner promised. Its contention is foundèd upon a section of
the charter or act of incorporation by which alone it is olaimed its
power to create a mortgage is conferred, and upon a provision of the
constitution of Arkansas which limits the power of corporations of
that state in issuing bonds. The section of the charter relied on is
section 9, which is as foUows :
"The said coiïlpany may at any time Increase its capital to a sum sufficient
to complète the said roacl, and stock it with any thing necessary to give it
full opération and effect, either by opening bocks for new stock, or by selling
such new stock, or by borrowing money on the crédit of the company, and
on the mortgage of its charter and works."
The constitutional provision is contained in article 12, and dé-
clares :
"No private corporation shall issue stock or bonds except for money or
property actually received, or labor done; and ail flctitious increase of stock
or indebtedness shall be void."
As the bonds and stock issued by this corporation were issued for
property actually received, viz., the Said railroad and ail the corporate
property, it isnot obvions how this constitutional provision bas any
application to the présent controversy.; It is assumed in the argu-
ment of counsel for the complainant, and reiterated several times.
MBMPHIS & lil E. S; éO. t).' DOW. 891
that the complainant reoeived.no considération for the mortgage
borids. Upori what theory this is claiiùed or can be maintained is
net apparent, and, indeed, is incompréhensible. The original cor-
poration had been diyested of its property by the foreclosure sale.
The newly-organized corporation accepted a reconveyance upon con-
dition of éxecuting the new mortgage bonds to the vendoirs. Whether
the complainant is a new corporation, or ,whether it is fhe, old corpo-
ration, need not be considered, because in either view the mortgage
bonds were the considération of the conveyance.
The proposition which is advanced, that the'vendors àiid the vend-
ees were the same persons, and therefore there could be no contract
or sale, ifl nôt eyeu technically correct. One of the parties Wàs the
corporation; the bondholders, by theîr trustées, were the other par-
ties. True, the stockholders of the corporation were also thé bond-
holders, but the. circumstance that ail the stockholders of a corpora-
tion are.at the sarûe time the severàl ownets of property, which the
corpisration wishes to buy, does not destroy the power of the parties
to conttàût together. Suppoiie there were two corporations,' eaoh
comp'osed of the same stockholders, can it be seriously contendéd
that one corporation could not make a contract with the oth'ef? A
corporation may contract with its directors; why not with its stock-
holders ? If the complainant ever acqùired the' property ît wàs by a
j)urchase; if it could purchase, the bondholders could sell, and the
mortgage was the considération of the purcbasè' and sale. '
The primary questions, then, ave^Mrst, whether, upon the pur-
chase of property, the corporation could mortgage whait it acqùired
to secure the purchase money; and, second, whether se'ction 9 of the
charter has any application to such a transaction. It is to be ob-
served that the complainant doés not question its own power to ae-
qiiire the property conveyed to it. It caiinot do this- while it holds
on to the property and seeks to remove the lien of the' mortgage. If
it could legitimately purchase, why could it not, like an individual
purchaser, mortgage to secure the pricô ? A corporation, in order to
attain its legïtimate objects, may deal precisely as can "an individual
who seeks to accomplish the same ends, unless it is prohibited by
law to incur obligations as a borrower of money. "Corporations
having the power to borrow money mày mortgage théir "property as
security. Although it was at one time a question whether express
leigislative consent was not required in order to authorize a mortgage
of any corporaté property, as, fôr exàmple, in Steiner's Appeal, 27
Pa. St. 313, yet the rule now is that à général right to borrow money
implies the power to mortgage ail corporaté property exeept fran-
chises, nnless restrained by express ' prohibition in the àct of incor-
poration, or by some gênerai statutè." Green's Brice'e Ultra Virésj
(2dEd.) 223, 224.
In the late case of PUladdphia é B. R, Go. v. SHckler, 21 Amer.
392 FEDEBAIi BEPOBTEB.
Law Eeg. 713, the suprême court of Pennsylvania considered the
question, and Paxon, J., delivering the opinion of the court, said :
"So far as the mère borrowing of money is concerned itis not necessary to
look into the charter of the company for a grant of express powers. It exists
by necessary implication. * * * The reason is plain. Such corporations
are organized for the purposea of trade and business, and the borrowing of
inoney and issuing obligations therefor are not only germane to the objects
of their orgànization, but necessary to carry such objects into effect."
In Platt V. Union Pac. R. Co. 99 U. S. 48-56, Mr, Justice Stbong,
speaking for the court, says :
"Eailroad corporations are not usually empowered to hold lands other than
those needed for roddways and stations or water privilèges. But when they
are authorizcd to acquire and hold lands separate from their roads the author-
ity must include the ordinary incidents of ownership — the right to xell or to
mortgage."
The right of mortgaging follows as a necessary incident to the right
of managing the business of a corporation, according to the usual
methods of business men. The right of a corporation to mortgage its
franchises, or the property which is essential to enable it to perform
its functions, is generally denied by the authorities. But does the
reason upon which this déniai resta hâve any application to a case
like the présent? The foundation of the doctrine is that such a
mortgage tends to defeat the purposes for which the corporation was
chartered, and the implied undertaking of those who obtain the char-
ter, to construct and maintain the public work, and exercise the fran-
chises for the public benefit. Some judicial opinion is found to the
effect that there is no good reason for denying the right to make
such a mortgage without législative consent, because the transfer of
the franchise to new hands through a foreclosure is, in fact, a change
no greater than may take place within the original corporation, and
the public interests are as safe in such new hands as they were in
those of the original corporators. Shepley v. Atlantic é St. L. R. R.
Go. 65 Me. 395-407; Kennebec é P. R. Co. v. Portland é K. R. Go.
59 Me. 9-23; Miller y.Rutland & W. R. Go. 36 Vt. 452-492. Hère
the mortgage was executed to enable the corporation to résume the
exercise of its charter powers, and fulûll the purposes for which it
was originally created. No précèdent bas been found denying to a
corporation the power to exécute a mortgage of everything it acquires
by a purchase, when the mortgage is a condition of making the pur-
chase; and there seems to be no reason, in a case like the présent,
for denying the power when the purchase of the mortgagor includes
the franchise and the whole property of the corporation.
Section 9 of the charter is not a restriction upon the implied power
of the corporation to incur such obligations as are necessary to en-
able it to carry on its business. It is a provision which would seem
to be intended to enlarge rather than to restrict the power of the cor-
MEMFHIS « L. B. B. 00. V. DOW. 393
poratîon in this regard. Its purpose is to authorize an increase of
capital to an extent commensurate with the necessities of the corpo-
ration in any of the modes usnally adopted by corporations for rais-
ing money — a provision whieh was neceasary in view of section 4 of
the charter, which limited the amount of increase. As a corporation
has no implied authority toalter the amount of its capital stock when
the charter has definitely prescribed the limit, this permission was
necessary. The purchase of property by the corporation for cash or
on crédit is not an increase of its capital.
There is another ground, however, upon which the décision of the
case may rest more satisfactorily. Assuming that the complainant
transcended its charter powers in ereating the mortgage bonds in
question, it cannot be permitted to retain the benefits of its purchase,
and at the same time repudiate its liability for the ptirchase price.
The ruie is thus stated by a récent commentator :
"Tne law founded on public policy requîtes that a contract made by a cor-
poration in excess of its cbartered powers be voidable by eitlier party while
a rescission can be effected without injustice. But after a contract of this
character has been performed by eitber of the parties the requirements of
public policy can best be satisfled by compelling the other party to make com-
pensation for a failure to perform on his side." Morawetz, Corp. § ioo.
It is to be observed that in the présent case there is no express
statutory or charter prohibition upon the corporation to purchase the
property or mortgage it for the purchase money. At most, its acts
were ultra vires, because outside the restricted permission of the char-
ter. It is not necessary, therefore, to consider the distinction made
by some of the adjudications between the two classes of cases. Hitch-
cock V. Galveston, 96 U. S. 341. The decided weight of modem au-
thority favors the conclusion that neither jparty to a transaction
ultra vires will be permitted to allège its invalidity while retaining its
fruits. The question has frequently been considered in cases where
a corporation, suing to recover upon a contract which has been per-
formed on its side, is met with the défense that the contract was ultra
vires, or prohibited by the organic law of the corporation. Whitney
Arms Co. v. Barlow, 63 N.'Y. 62; OU Creek dt A. E. Co. v. Venu.
Transp. Co. 83 Pa. St. 160; Bly v. Second Nat. Bank, 79 Pa. St.
453; Oold Mining Go. v. Nat. Bank, 96 ïï. S. 640; Nat, Bank v.
Matthews, 98 U. S. 621. The latter case is a forcible illustration of
the rule generally adopted. There a national banking association
was proceediag to enforce a deed of trust given to secure a loan on
real estate made by the association in contravention of section 5136,
Eev. St., prohibiting by implication such an association from loan-
ing on real estate, and the maker of the trust deed sought to enjoin
the proceeding upon that ground. The court, speaking through Mr.
Justice SwAYNB, cite with approval Sedg. St. & Const. Law, 73, in
which the author states that the party who has had the benefit of the
agreement will not be permitted to question its validitj wben the ques-
39é FEDERAIi EUtOBTBB.
tion is one of poiyer oonf erred by a charter. Another class of «a^e?
is where the corporation itself > atteœpta to set up its owq want of
power, in order to defeat an agreement or transaction whieh is an
executed one as to the other pavty, and from whioh the corporation
bas derived all'that it was entitled to. Such cases were Parish v.
Wkeeler, 22 N. î. 494; Bissell v. M. S. é N. I. R. Co. Id. 258;
Hays V. Galion Gas Co. 29 Ohio St. 330-340; Attleborough Bank v.
Rogers, 125,Mass. 339; McCluer V.Manchester R. Co. 13 Gray, 124;
Bradley y. BaUard, 55 111, 418; Rutlanàé B. B. Go.y.Proctor, 29 Vt.
93. In the-first of thèse cases the court say :
"It is now very well settled that a corporation cannot avail itself of tlie
défense of ultra ■oires when the contract bas been in good faith fuUy per-
formed by the other par ty, and the corporation bas had the full benefit of the
performance and of the contract. If an action cannot be brougbt directiy
upon the agreement, either equity will grant relief or an action in some other
form will prevail.
The présent oasé is phenomenalin the audacity of the attempt to
induce a court of equity to assist a corporation in repudiating its obli-
gations to its çreditors without offering to returu the property it ac-
quired by its unauthorized contract with them. The fandamental
maxim is that he who seeks equity must do equity. Every stock-
holder of the corporation when he aoquired bis stock took it -with notice
explicitly embodied in bis certificate that bis interest as a stockbolder
was snbordihate to the rights of the holder s of the mortgage bonds.
It is now contended that if there is any obligation on the part of the
corporation to pay for the property it purchased, it is not to pay what
it agreed to, but to pay a less considération, because the property was
not worth thé price agreed to be paid. The coutt will not compel the
bondholders to enter'upon any such inquiry. They are entitled to set
their own value on tbeir own property. When the complainant offers
to reconvey the property in considération of which it created its mort-
gage bonds it will bave taken the first step towards reaching a posi-
tion which may entitlé it to be heard. It may be said, in conclusion,
that there wouldbe no difficulty, oh well recognized principles, in pro-
tecting the bondholders against th^ destruction of their claims upon
the thëôry of a véndor's lien for the purch'ase money. The taking of
a mortgage by their trustées, so far frôm evidencing an intention to
waive the lien, is conclusive évidence to the contràry
The bill îsdismissed, with costs.
TBUSIEES OINOINNÀi;! SdOTHERâ BAlLwAÏ V. aUEMIHBB.
- .. . ■ _ • , ■ , . ..J?
Trustées of the Cincinnati Soutiiërn Railway î>.; Guenthér,
Trustée, etc.
[Circuit Court, B. D. Tennessee. February 18, 1884.)
1. AUTHORITY OF TAX CoLLECTOR.
A tax collecter bas no authority to compromise a claim against a tax-payer.
2. Taxation — Unconstitctional Assessmïint — Estoppel.
In Tennessee, when taxes hâve been assessed and coUected under an uncon-
stitutional statute, the municipalily receiving them is net estopped by sucli
receipt from disputing th&correctness of the valuatioa and making a reaasess-
ment,
3. Bamk — ^Absbbsmbnt bt Colleotor — RAn,BpAD Phopertt.
The statute of Tennessee empowering coUectors of taxes to assess property
which, by mistake, has escaped assessmeill; in regular course, applies to the
property'of railroads as well as to that of prlvate individuals.
4. Bamb— Unbqual Valdations— Vauditt of Assbssmbnt.
An exaggerated valuation intentionally put upon a partici;lar class of prop-
erty renders unconstitutional a tax Imposed in acoordance therewith ; but the
tax-payer may be required to pay the amount justly due, without the formal-
ity of a new assessment.
5. VaIiDb OF Railiïoad Propkrtt.
The value of rallroad property is to be determined largely by référence to
présent and prospective profits, and not by the cost of construction alone.
In Bquity.
C. D. McOuffy and Tkomburgh é Andrews, for complàînants.
James Sevier and Luckey é Yoe, for respondeni;.
Ket, J. Complainants own a railroad extending from Cincinnatî,
Ohio, to Chattanooga, Tennessee. This Une of road passes through
Eoane county, Tennessee, for the distance bf 15 miles and a half . An
a et of the législature of Tennessee, passed March 24, 1875, p. 100,
pjrovides for a board of railroad tax assessors, who are to asses's the
taxable value of the railroad property of the state, and how the same
is to be apportioned to the différent connties through "«yhieh thèse
roads run. Under this statute the complainants weré assessed for
and on behalf of the county of Eoane the sum of $1,235.17 for the
year 1881, which assessments were paid. At the September term,
1881, of the suprême court of Tennessee, it was decidéd that the
modeof assessment provided bytheactof 1875 was uncttnfetitutional.
Chattanooga v. Railroad Co. 7 Lea, 561. On February 15, 1882, the
respondent issued a citation or notice to complainants rëciting that the
assessments under the act of 1875 were unconstitutional, and that
the taxes paid for the years 1880 and 1881 were paid upôn an under-
valuation, and notifying complainants to appeair for the parpose of
making a proper assessment. Complainants did Qot appear, and re-
spondent proceeded to make new assessments, accordiiig to which
the taxes due the state and Boane coiinty for the year 1880 amounted
to $5,504.79, and for the year 1881, $5,566.68. i .Gomjpkiùants a,p-
pealed from this assessment to the chairman of the county court of
S96 FEDERAL BEPOBTEB.
Boane connty, who redueed the assessment somewliat, but not rery
considerably.
The bill in this case is filed to enjoin the collection of the taxes
under the last assessment upon several grounds. It is insisted that
the payment of the taxes assessed originally by the board of commis-
sioners was a settlement and compromise in respect to thèse taxes,
because respondent insisted upon their payment, and complainanta
objected to the validity of at least a portion of the tax. It appears
from the receipts executed for the taxes that complainants paid them
under protest. As the law provides that taxes illegally assessed may
be recovered back by the tax-payer, if paid under protest, thèse trans-
actions, upon their face, could hardly be regarded as a compromise.
But this aside, the respondent, as the trustée and tax collector of
Eoane county, had no authority to compromise with complainants in
this respect. He was bound to collect taxes as assessed. It is fur-
ther insisted that as the agents of the state had assessed taxes against
complainants under the forms and terms of the law of the législature,
and the county of Eoane had recognized its action by colleoting and
appropriating the taxes under the assessments, the county of Eoane
is estopped from denying the validity of the first valuation, and in
conséquence the assessments in controversy are void. There is much
force in this position, and I am not sure but I might concur in this
view of the case if the question were an open one. But we are con-
sidering laws, — statutes of the state of Tennessee, — and this court is
bound by the décisions of the suprême court of the state in regard to
the construction of the statutes thereof, provided no fédéral or con-
stitutional right is invaded. The suprême court of Tennessee, in the
décision already referred to, {Chattanooga v. Railroad Go. 7 Lea, 563,)
says :
" We may assume in this tase that if the position of tteplaintifl is correct,
that the assessment by the board of assessors for railroads is unconstitu-
tional as to the property owned by the company in the city of Chattanooga.
then there bas been no assessment at ail, and the property may well be as-
sessed for taxation, and the railroad company be compelled to pay the taxes
thus assessed."
In that case, as in the one under considération, the railroad com-
pany had paid the taxes for the years 1877, 1878, and. 1879,, and tend-
ered the sum due for 1880, according to th© assessment and valua-
tion made by the state railroad assessors, as provided for by the acts
of the législature of 1875 and 1877, and the court held that thé tax
as assessed by the board of tax assessors for railroads was uncon-
stitutional, — was void for that reason; so that, according to the para-
graph already quoted, "there had been no assessment at ail, and the
property may be well assessed for taxation, and the railroad company
be compelled to pay the taxes thus assessed." Tfae whole scope of
this décision is opppsed to the idea of the estoppel olaimed by com-
plainants.
TRUSTEES CINCINNATI SODTHBEN RàlLWAY V. QUBNTHBB. 397
Complainants say that the assessments for taxes made in 1882 for
the taxes of 1880 and 1881 are void for the want of authority in the
respondent or the county court to make them. The gênerai tax law
of April 7, 1881, p. 251, contains a provision that if it should corne
to the knowledge of the chairman, or judge or clerk of the county
court, the county trustée, sheriff, or tax coUector of any county, that
any person, company, firm, or corporation had not been assessed as
contemplated by the aot, or had been assessed on an inadéquate
amount, it should be the duty of such ofSicer to cite such person, com-
pany, firm, or corporation, or their agent or attorney, to appear before
him, 80 that an assessment may be made, and such officer was au-
thorized to make the proper assessment. A similar provision is
found in the act of 1873, p. 175. The act of March 12, 1879, p. 93,
says "that ail coUectors of taxes are hereby made assessors to assess
ail property which, by mistake of law or f acts, has not been assessed ;
and it is hereby made the duty of such colloctors in ail cases whereby
property has not been assessed, but on which taxes ought to be paid
by law, to immediately assess the same and proceed to coUect the
taxes. It is insisted that railroad property was not in the contem-
plation of the législature when thèse acts were passed, and is not
embraced in them. That railroads were taxed under other acts, and
assessed through différent agencies and instrumentalities from those
assessing other property, is true. It has not been shown that any
spécial provisions of law bave been made for railroads which might
hâve escaped taxation, and the terms of the acts of 1873, 1879, and
1881 are sufficiently gênerai to embrace railroads in their seope
and phraseology. When we add to thèse considérations the authority
of the case of Chattanoogav. Railroad Go. ,8upra,-vieGonG\\jLA.Q that the
tax collector was clothed with authority in the premises. The subsé-
quent action of the county court did not invalidate the assessment, for
the chairman thereof might hâve assessed the property as well as the
tax collector for the year 1881, and the tax collector and chairman
might consult with the members of the county court, or with other
persons, as to the valuation of the property. No formalities or meth-
ods are prescribed by which he is to be governed in arriving ât hîs
conclusions in regard to such assessments as he may make.
It is said by complainants that the taxes for the year 1880 cannot
be coUected because the respondent was not installod into office un-
til September of that year; that the taxes for that year were assessed
in June, according to the terms of the law; and the case of Otis
V. Boyd, 8 Lea, 679, is relied upon as authority for this position.
That case does décide that the tax coUectoi' cannot assess and coUect
taxes upon property which has not been assessed for any year previ-
ouB to the current year in which he entered upon his office. But it
seems to me that the reasoning in that case does not sustain the po-
sition of complainants'. Under the terms of the law, the tax assessor
has no power to assess except in cases in which there has been uo as-
898 FEDERAL BEPOETEB.
sessment, or in wMch there lias been an inadéquate one. He is com-
pelled to wait until after the regular assessora hâve made their re-
ports and returns before he can asoertain whether property has been
omitted, or inadequately taxed. If he may wait a week, he may a
month, or six months, or more, so that he act theireon during his term.
The nature of his duties in this respect leada to this conclusion from
the necesaity of the case. It may be said, in regard to most of the
grounds assumed by complainants in opposition to the payment of
thèse taxes, that it is not denied that the property of complainant is
subject to a tax for the benefit of and on behalf of Koane county,
and that it is the duty of complainants to pay such tax. It is the in-
validity of the tax from the method of its assessment which is relied
upon. In such cases ail doubts are resolved in faror of the tax. The
défense must make its right to resist the collection of the tax clear
and manifest before it can hâve relief.
Complainants insist, however, that though ail the f oregoing reasons
for their relief fail, yet the taxes assessed against them violate the
constitution of the state of Tennessee in this : That the tax against com-
plainants is unjust and uneqnal, and railroad property is valued at a
higher rate than property of other oharacter; that this inequality ia
produced because railroad property, as a class or species, is yalued for
taixation at a higher rate according to its value than other kinds or
species of property in Eoane county; that this higher valuation ia
made and arrived at by establishing a différent basis of valuation for
railroad property from that used in valuing other kinds of property,
and that it is done intentionally, and for the purpose of discriminat-
ing against railroads. Mère inequalities in taxation will not vitiate
a tax if they be accidentai arid unintentional. Thèse must occur
under any System of assessment, and especially underthat in force
in this state, in which every civil district and ward has its own
assessor. There will of necessity be many instances in which prop-
erty will be assessed at more than its value, and more, perhaps, in
which it will be assessed at less than its value. Thèse errors and
discrepancies will not vitiate the tax; they are inévitable. But a
différent resuit foUows should a standard of valuation be used for one
species of property which is différent from that used for another, if the
end reached necessarily is the taxation of the one species higher than
the other. The constitution of Tennessee establishes that "ail prop-
erty shall be taxed according to its value ; that value to be ascertained
in such manner as the législature shall direct, so that taxes shall be
equal and uniform throughout the state. No one species of property
f rôm which a tax may be collected shall be taxed higher than any
other species of property of the same value." Axticle 2, § 28. With
eométhing of itération the principle is emphasized that taxation shall
be equal and uniform. If Unjust discrimination and différence ia
made, the tax so imposed may be restrained and its collection pre-
TBUSTEBS CISCINNA.TI SOUTH^ÇBN KAILWAY r. GUENTHEB. 393
vented. Pelton v. Nat Bank, 101 U. S. 14(3 ; C'ummitigs v. N'at. :Bank,
Id. 153; Chattanooga v. Eailroad Go. supra.
The record in the case under considération does nofc shpw very
clearly what particular method, oi valuation was follovped in assessing
the value of railroad property, or that of pther property, but it does
appear that real estate was, as a rule, taxed upon a valuation less
than its real value. The respondent in his déposition says, at a rate
less by 10 per centum than its real value. But from the other proof
in the cause, and from what a court may judicially kno.wof the bis-
tory of tax assessments in this région of the country, we think that
lands in Eoane county were taxed at a valuation on the a,verage of
one-fourth below their real value. It is quite apparent that the prop-
erty of complainants was assessedat a valuation much above its real
value. It does not distinotly appear what rule was adopted in the
valuation of lands, but it is clear that it was not intended to assess
them at their real value, but below it ; nor were they assessed, as a
rule, according to their oost. It is equally clear that it was intended
to assess railroad property at itsfuU value, and that in doing so there
was fixed upon it an exaggerated and unreasonable valuation, This
différence was not accidentai. It follows from this intentional in-
equàlity that the complainants are entitled to relief, but how far and
to what extent is a question of interest. Shall the entire tax be de-
clared illégal and void because of the illegality of thé assessment, or
shall only the collection of so much of it as may be in escess of a
reasonable and proper tax be restrained ? As alrea,dy stated, ail pre-
sumptions and intendments should be in favor of the tax, in cases of
doubt. If the entire tax were declared void, it is probable that under
the ruling of the, suprême courtof the state in the case of Otisv.Boyd,
8 Lea, 679, valid assessments could not now be made for the taxes
of the years 1880 and 1881. The suprême court of the United States,
in the case of Cummings v. Nat. Bank, lOl U. S. 153, held that the
tax in that case was unconstitutional because the rule of equality in
taxation had been disregarded, and that the appropriate mode of re-
lief in such cases is, upon payment of the amount of tax which is
equal to that assessed on other property, to enjoin the collection/ of
the illégal excess. The same doctrine is again asserted in Nat. Bank
V. Kimhall, 103 U. S. 733, and in SupWa v. Stanley, 105 U. S. 305.
■ I conclude, therefore, that so much of the tax as is reasonable and
just should be paid by the complainants, and the excess enjoined.
Then, what is a reasonable valuation of complainants' property as
compared with that fixed upon other property for, taxation? For
this litigation should be so ôondueted that such taxes àa are proper
may be paid at the earliest moment practicable, and the case should
now be finally determined if the record is in such a atate of epraplete-
hess as to allow it. The value of a tailroadj especially a new onp, is
a problem ofno eàsy solution. : It is quite évident that the :çespond-
ent assessed the value of that part of this railroad m Boaue qounty
400 PEDBEAL REPORTER.
mainly from the cost of its construction. In his answer lie says
that "he believes that the cost and value of the road lying and situate
in Roane county was and is above the average of said road. There
are several tunnels and bridges in said county, and cost, as he is in-
formed, about as foUows : Emory river bridge, $100,000 ; White's
Creek bridge, $20,000; Kegan's tunnel, $250,000," etc. To make
the cost of a thing, especially a railroad, the measure of its value, or
even a chief constituent thereof, is most fallacious. A railroad that
costs $20,000 per mile is worth as much as one that costs $50,000
per mile, if its business and net earnings be as great or greater. In-
deed, it is more valuable, in one sensé, as it makes a better return on
the investment. The expenses of keeping a road in repair which
runs through hills and mountains, and over rivers, are greater, be-
cause it requires greater labor to keep its tunnels, bridges, and road-
bed in repair, than it does in case of a road over a level country.
There must be a greater number of watchmen at the bridges, tunnels,
curves, and cuts and fiUs. The grades are heavier and running ex-
penses more. Sometimes, indeed often, property may cost much and
be worth very little, or cost little and be of great worth. Its cost
may be looked to as an élément entering into its value, but not as its
sole or even chief élément. The earnings of a railroad, présent and
prospective, mùst form a most important ingrédient in the estimation
of its value. What amount of business has it done, is it doing, and
what is it likely to do? What through freights, local freights, etc.,
does it carry and will it çarry? Many things must be considered in
arriving at its value. There are 15 J miles of this road in Eoane
county. One of the engineers under whoae supervision it was con-
structed shows that the cost of this part of the road was about $é0-
000 per -mile. It has been assessed at that rate for the year 1880,
and at $é4,000 for the year 1881. The officers of the road, who
predicate their estimate of value solely upon the net earnings of the
road for thèse two years as compared with its cost, fix the value of
the same part of the road at about $16,000 per mile for 1880, and
nearly $20,000 for 1881. We know, as an historical faet, that rail-
roads in this section of the country hâve never proved a profitable
investment to those whose capital built them, even in the localities
most favorable for their construction and business. We know that
this road runs, for a great part of its way, through a mountainou»
and rugged country, and was built at a heavy outlay. The country
through which it runs is, much of it, wild and undeveloped, and what
business may grow up along its Une is problematical. Taking ail the
known and proven facts into considération, I am of the opinion that
about 50 per cent, of the original cost would be a fair valuation for
1880, and that about $2,000 per mile should be added to it for 1881.
1 direct, therefore, that a valuation of $20,000 per mile be assessed for
1880, and $22,000 per mile for 1881. I think this will be a fair and
full assessment upon this property as compared with the rate at
PHILADEIiPHU A B. B. 00. V. TOhhOOK. éOl
which other property is valued for taxation by the county, and is
more likely to be above than below the real value. It is manifest
that the rolling stock and other personal property which were assessed
for taxes against complainants did not belong to complainants, but
to their lessees, and tberefore complainants should not be taxed on
its account.
The next question raised by complainants is that the act of the
gênerai assembly of Tennessee of 1879, p. 282, authorized a county
tax of not exceeding 30 cents on the hundred dollars, but that the
county court of Roane county, after levying a tax of 30 cents, levied
a spécial tax of 10 cents additional. It is insisted that this spécial
tax of 10 cents is void. This tax was levied, it is said, to repair
county buildings. Complainants' position is sustained by the case of
Bailroadv. Franklin Co. 6 Lea, 711, and Railroad v. Marion Co. 7 Lea,
664r. Spécial authority must be shown to hâve been conferred by
lawon the county court to levy this spécial tax before it could legally
impose it. The repair of tho county buildings is an ordinary county
purpose, and the limit of taxation for such purposes was 30 cents. A
school tax of 25 cents on the hundred dollars was levied for 1880.
The foregoing case of Railroad v. Franklin Co. deeided that a tax of 20
cents on the hundred dollars was the limit of the school tax which the
législature authorized counties' to impose for the year 1880, There-
fore, to the extent of five cents upon the hundred dollars, the school
tax levied by the county of Eoane was illégal. The collection of the
spécial tax aforesaid, and of the excess of the school tax herein men-
tioned, will be enjoined as against complainants. The sums paid by
complainants as taxes for the years 1880 and 1881 will be credited on
the amounts due from them for the respective years, as ascertained
and deolared by the decree in this case as herein directed. Interest
will be chargea upon the balance due from complainants from the
date of the filing of the bill in this cause. The oosts of the cause will
be paid by respondent. No account need be taken, as the amounts
due under the decree can be readily arrived at by a simple ealcula-
tion.
PHII.ADBLPHIA & E. E. Co. V. PoLLOOK.*
{Oireuit Oowt, S. D. Penntyltiania. February 11, 1884.)
Internai. Hevenub— Section 19, Aot op Febr0aky 8, 187S, (18 8t. 311,)— Notes
UsED POE OiBoin.ATioN— Promissort Notes— Wages Certipicatks.
The nineteenth section of the act of Peburary 8, 1875, (18 8t. 311,) providing
that " every association, other than national bank associations, and every cor-
poration, * • * shAll pay a tax of ten per centum on the amount of theii
own notes usedfor drculation and paid out by them," does not apply to certifi.
1 Reported by Albert B. Gnllbert, Esq., of tUa Pblladelpbla bar,
v.l9,no.6— 26
402 .: rBDBBAL.BEFOaXBB.,
cates of îndebtedness, bearing Interest and payable to baarer on. a certaid day
therein named, issued in dénominations of flve and ten dollars each, and paip
out by a railroad company to its employés fût wagea, and providing that tlJej-
■woula be received by the company at or beforo maturity for any debt8 due the
Company. Thèse notes or certiflçatesj having been issued only to the employés
of the company on account of wages, and when paid, by the company having
been canceled and not reissued, were not "usée for circulation," and that
they were used af terwarda by those to whom they were issued to discharge theii
debts to others or to purchase subsiatence for themselves, does not afEect the
character imposed upon them by the Company,
Hearing on Bill, Answer, and Proofa.
This was a bill to enjoiii Poilock, collecter of internai revenue, and
his deputy from proceeding to enforcé payinerit of a tax levied.under
the nineteenth section of the act of oougresa of Pebruary 8, 1875,
(18 St. 311,) providing "that every person, firm, association, oth,ei:
than national bank associations, aûd every corporation, state bank,
or state banking association, shall pay a tax of ten pèr centum on the
amount of their own notes used for circulation &nd paid out bythem."
From the pleading and évidence it àppeared that the Philadelphia &
Eeading Railroad Company iâsaëd to its employés for wages in the
yeara 1878 and 1879 certain instrutnents, in the foUowing form : ,
"Thb Philadelphia & Reading Railroad Company.
"No. . Wages Oertiflcate.
"I*HiLADBLFmA, December — , 1878,
"The Philadelphia & Reading Railroad Company promises to pay to thé
bearer hereof the sum of — — ^ dollai:S, on the • day of — , 187&,
with interest from date, without défalcation, for value received. This note
is issued for wages due by the Philadelphia & Reading Railroad Company,
and will be received either before or at its maturity for the amounts due
thereon in payment of freight and toll bills of the Philadelphia & Réadihg
Railroad Company, for coal bills of the Philadelphia & Reading Coal & Iron
Company, or âny other debts due to either of the said companies.
"F. B. GowEN, Président. '
"S Beadfokd, Treasurer."
Thèse certilicates were prmted on tinted paper, embellished with a
vignette, and were somewhat narrower and longer in size than na-
tional bank notes. For convenience they were made in dénomina-
tions of flve and ten dollars each, and were issued to an amount of
about $4,800,000. They were .ï)6,id only to the employés of the com-
pany for wages, and when returned to the company, before maturity,
in payment of freights or toUs, and when paid by the company ai
maturity, were canceled and not reissped. There was évidence that
in many cases thèse notes had been used, by the persons to whom
they had been issued, in payment for goods purchased from store-
keôpérs and dealers, and that wholesale dealers had received thêta in
payment of accomits due by such store-keepers, and that they had
been largely dealt in by stock brokers. There was also évidence that
they had never been treated as circulation in the lûcalîties in which
IHILADELPHIA & ft. S. 00. Vi POLLOCK. '403
they were thus used, and that they could not bB mistaken for bank
notes.
James ^. (rowen, for complainantSi
The certiflcates are simply interest-bearing promissory notes, pay-
able at a certain time, issued for existing debts, and were never in-
tended or used as "circulation." The extent of the issue is of no im-
portance. The dénominations used were to faoilitate the payment
of thousands of ofScers and employés, whose salaries were largely in
arrear. They were issued only to employés for actual debts, and
when retumed to the company before or after maturity were can-
celed and not reissued. Had tbe purpose been to use them as cir-
culation they would hâve been reissued, and in such case a tax could
hiave been elaimed orily on the average monthly amount in circula-
tion. They were dealt in by brokers and others as any other secu-
rity, and their crédit was fixed by their quotable value at the stock
exchange. They resemble warrants issued by municipalities. The
distinction between notes issued in payment of existing debts and
notes issued for circulation bas always been recognized. Oraig v.
Missouri, 4 Pet. 410; Atty. Gen. v. Ins. Co. 9 Paige, Ch. 470; Divdy
V. City of Cedar Falls, 27 lowa, 237; Mullarky y. Town of Cedar
Falls, 19 lowa, 24. Obligations which circulate as money are paya-
ble on demand. 14 Abb. Pr. 275; Morse, Banks, 458. The ques-
tion, however, is concluded by U. S. y. Wilson, 106 U. 8. 620, [S. G.
2 Sup. Ct. Rep. 85,J which was a much stronger case for the gov-
ernment than the présent. The committee on ways and means of
the house of représentatives, and the committee on finance of the
senate, at Washington, hâve both reported that thèse certiflcates are
not taxable as circulation under the act of 1875.
I. K. Valentine, U. S. Dist. Atty., for respOndents.
Thèse notes are within the prohibition of the act. Thomas v.
Richmond, 13 Wall. 353. The name given thèse notes by the com-
pany is not essential. Their nature is to be determined by the in-
struments themselves, their charaoter and purpose. The agreement
to receive them for debts due the company is calculated to îacilitate
their circulation. In fact they did circulate. It is no answer to say
they were not reissued; Bank of England notes are not reissued.
Thèse are in ail respecte current notes used for circulation, and tax-
able as Buch. Webst. Dict. "Note;" Morse, Banks, 488; Craig v.
Missouri, 4 Pet. 410 ; Briscoc y. Bank of Kentucky, 11 Pet. 257. The
law is so settled in Pennsylvania. Hazleton Goal Go. v. Megargel, 4
Barr, 324. Also in New York. Im. Co.r. CadweU, 3 Wend. 302;
Leavitt y. Yates, 4 Edw. Ch. 134. V. S. y. WUsôn, supra, arose under
a différent act, and in that case the notes had been issued by the re-
oeiver under a decree of a court and were sold by the company.
MoKbnnan, Ji We are of opinion that this Case is ruled by U. S.
V. Wilson, 106 U. S. 620, [2 Sup. Ct. Rep. 85.] In that case it
was sought to subject to taxation certiflcates of indebteduess issued
404 FEDEBAL BEFOBTEB.
by a railroad Company, and by a receiver appointed to take charge of
it, as notes or obligations, wîthin the meaning of section 3408 of the
Revised Statutes, "calculated, or intended to circulate, or to be used
as money," and the court held that they were not "circulation" and
so not taxable. The tax claimed in this case was imposed under
the nineteenth section of the act of congress of February 8, 1875,
which provides "that every person, firm, association other than na-
tional bank associations, and every corporation, state bank, or state
banking association shall pay a tax of ten per contum on the
amount of their own notes used for circulation and paid out by
them," The notes issued by the oomplainants hère were in the form
of promises to pay to bearer a round sum at a future day, with inter-
est, and were upon their face stated to be for wages due by the
Philadelphia & Eeading Eailroad Company, and were receivable
before or at maturity in payment of freight and toU bills of the
Philadelphia & Eeading Railroad Company and for coal bills of the
Philadelphia & Eeading Coal & Iron Company, or any other debts
due to either of said companies. Thèse notes were only issued to
the employés of the railroad company on account of wages due them,
and when paid by the company were canceled and not reissued.
They were not, therefore, "used for circulation" by the company,
but only as évidences of the company's indebtedness to its employés
for wages; That they were used afterwards by those to whom they
were issued to discharge their debts to others, or to purchase sub-
sistence for themselves, is, in our judgment, indecisive in determin-
ing the character of thèse instruments, because that is to be imposed
upon them by the company by vmng them as circulation, and paying
them out as such. This, as already stated, was not done. What
is there, then, to put them in the oategory of "circulation?" This
is claimed to resuit from the form in which they were issued. But
this is fully answered by the suprême court in U. S. v. Wilson. In
every essential particular the certificates issued there and those
in question hère are remarkably alike. The former were certifi-
cates of indebtedness, good for round sums, payable to bearer .at
a future day, with interest, and one-fourth of their face value was
receivable before maturity for freight and debts due the company,
and were paid out again at their face value, with interest. Under
thèse circumstances the suprême court held that it was not satis-
fied that thèse certificates "were calculated or intended to circulate
or be used as money." Now, in view of this décision, we cannot
hold that certificates of similar form, used by the railroad company,
not for circulation, but as évidence of wages due to its employés, are
within the scope and meaning of the act of congress, and so subject
to the tax imposed by it.
The first prayer of the bill must therefore be granted.
Butler, J., ooncurred.
MUSKEGON M;IT. BANK V. NOBTHWESTEQH UUT. Ii. IKS. 00. 405
McsKEOON Nat. Bank r. Nobthwestebn Mdt. Life Ins. Co.'
(Circuit Court, 8. D. New York. Februaiy », 1884.)
New Trial— Vbedict aoainst Bvidiincb.
A verdict will not be set aaide merely because the court la of the opinion that
a contrary verdict should bave been rendered, unleuit ia clearl^ aad palpabijp
against évidence.
Motion for New Trial.
John E. Fourgons, for plaîntîff.
Edward, Salmon, for défendant.
Shipman, J. This is a motion by the défendant for a new trial oi
an action upon a policy of life insuranoe, upon the ground tiiat the
verdict for the plaintiff was against the weight of the évidence. The
défendant relied upon alleged false représentations in the application
in regard to the insured's habits of tempérance and upon a breach of
his promissory warranty against intempérance. I am not dissatisfied
with the finding of the jury in regard to the alleged false représenta-
tions in the application. When the application was made, the in-
sured had been confessedly of temperate habits for over nine months,
and had thus shown himself capable pf self-control. I differ from
the jury in regard to his habits after the policy was issued, because I
am of opinion from the évidence that his habit of "spreeing," or in-
dulging in occasional débauches, became more oonfirmed, fréquent,
and certain until his bondage to intempérance was established ; and
that the excessive use of liquor impaired his health and shortened his
life. The uncontradioted facts that in April, 1881, while he was re-
covering from a spree, he employed a colored attendant for a fort-
night to accompany him everywhere and guard him against the use
of liquor, and that, notwithstanding, he occasionally becapie drunk,
are strong proof to my miud that he had reached a point where he
was conscious that he was powerless to witbstand his periodical thirst
for liquor. But, in the intervais between bis sprees, it is plain that
he was active, prompt, and energetic, and that he did not bave the
appearance of an intemperate man, and, from the fact that there was
no indication of liquor about his persbn, I think that he did not drink
during thèse intervais. The jury found that the insured was not
"habitually intemperate, or so far intemperate as to impair health,"
apparently from the faot that his excessive use of liquor was occa-
sional, and that be was abstinent during the periods whioh intervened
between his attacks of intempérance. I can see that there was enough
évidence in favor of the health and apparent tempérance of Gomstock,
when be was engaged in business, to induce an honest belief that ha
had not yielded to intemperate habits, and that, therefore, the ao-
counts which were given by persona who had seen him when he was
intoxicated were ezaggerated. The testimony of Messrs. Barrow, Par*
•Afflrmed. See 7 8np. Ct Bep. 1221.
é06 VBDBBAti BB70BTXB.
sons, Haines, and Goodsell shows that în theîr occasional or fréquent
interviews with Gomatock in the business part of the city, and during
business hours, they did not perceive that he ever drank liquor, and,
I think, it is true that if he had dratik without interruption his ap-
pearance and breath would hâve shown it, So that, while I think
that the verdict should hâve been for the défendant, I cannot say that
it was so much against tho weight of évidence as to demand or justify
the granting a new trial.
The jury gave more importance to the testimony for the plaintiflf
than I thought it deserved. While it was true, it did not seem to me
to be convincing. It apparently seemed to the jury to be weighty, but
new trials for verdicts against évidence should not be granted merely
because the court thinks that a mistake was made. The mistake should
be clear and palpable.
The motion is denied.
Lapp and others ». Vas Nobmak and ànother.
{Oiremt Court, D. Minnesota. Pebruary 15, 1884.)
1. VoLxmTART AssiQNMBNT— Possession op Abbighikb — Attachment.
Property in the possessioa of an assignée under a voluntary aesignment, pur-
porting to be made by the debtor in pursuanci of the statute of Minnesota, ap-
proved March, 1881, is not in eustodia legis, so as to exempt it from seiztire by
a writ. of attachment issued ont of the circuit court of the United States.
2. Same — Motion to Dissolve Attachment and Tukn Ovbr Propeutt to
Absigneb.
A motion to dissolve an. attachment and order the property to be turned over
to the assignée by the marshal, denied upon the facts staléd in the opinion.
The défendants made an assignment to one Bennett, in pursuance
of the provisions of section 1 of the insolvency law of the state' of
Minnesota, approved March 7, 1881. While the debtor's property in
store was in the possession of a deputy sheriff of Hennepin county,
Minnesota, the United States marshal attempted to take the same by
virtûe of a writ of attachment issued out of the United States circuit
court for this district. The deputy sheriff, after this attempted levy,
on demand of the assignée, surrendered the possession of the prop-
erty to him, which was immediately taken by the marshal, and the
assignée ejected frotn the building. A motion is made by the as-
signée to intervène in this suit, and to dissolve the writ of attachment
issued out ôf this court.
Merrick é Merr'xck, for Bennett, assignée.
CBrien dé WiUon, contra.
NsLSON, J. It is not necessary to décide on this motion whether
the asâignment is fraudulent on its face. True, the assignors hâve
expressly reserved an intèrest to themselves, and àuthorized the as-
signée to pay over to them any surplus that may remain, to the ex-
LAPP V. VAS NOBUiS. éOt
clusion of those creditors Ttho do not file a release and participate in
the assets'of theestates., It is doubtful whethersuch a provision is
in harmonj with the law, but in the view taken by the court this ques-
tion will not be considered. The affidavits introduced by the assignée
at the hearing show that the sheriff of Hennepin county was in pos-
session of and leg'ally controlled thé store and stock, wheh â dèmaiiid
was made by virtue of the assignaient and the possession of the prop-
erty surrendered by the deputy. The United States marshal of this
district had attempted to make a levy af ter the gheriff liad tàken pos-
session, but he could not rightfuUy interfère with thàt ojOSicer, and
there was no voluntary surrender to him of the property seized. It
also fairly appears by the affidavits of Bennett, the assignée, A. B.
Van Norman, Peterson, deputy sheriff, and. A. N. Merrickj that after
the sheriff or his deputy had surrendered the possession on demand
of the assignée and released the property, the United States marshal
immediately took the same by virtue of a writ of attachment issùëd
out of the circuit court of the United States for the district of Minne-
sota. It is by virtue of this seizure that the marshal holds the prop-
erty. On this statement pf the facts'Ishall notdecideon this motion
who bas the better title and right to thè possession of the property
taken.
Matker v. NesUt, 13 Fbd Ebp. 8T2, has no application to the fabts
hère. The writ of attachment properly issued in this suit against the
debtor, and if the marshal has sei2ed the property which belonged to
Bennett, he is certainly liable in ah action of trespass for the damages
thereby sustained.
It is claimed that the property în the possession of the assignée is
in custodia legis and not subject to seizure by wWt of attachment. I
do not agrée to this. The statute of Minnesota, March, 1881, did
not validàte ail assignments purportihg to be made in pursuance
thereof, andforbid a judicial investigation; and while I concède that
an attachment would not hold the property to satisfy a judgment
against the défendants uniess the assignment is fraudaient and void
against the plaintifs, yet under the law the property in the posses-
sion of the assignée is not in custodia legis bo as to exempt it from
seizure. This instrument is the source of title in the assignée, and
its exécution is the voluntary act of the debtors, and nôt a proceed-
ing instituted by law against them. The objeot Of section 1, as said
by the court in Ehode Island, where a similar section is contained
in the insolvent law of that state, — "is to take advantage of the dis-
pleasure which a debtor naturally feels when his property ia attached,
or to hold Out an inducement to him to make an assignment." lé
E. I. 460. The défendants hâve joined issue in the action brought by
the plaintiffs, and if the assignée desires to défend he càn become a
party thereto. . ;
The niotion to dissolve the attachment, howeveir, is dénied and it is
80 ordejed.
408 VEDEBÀI» BBPOSTBB.
Oelbebuak and others v. Mbbbitt.'
(Oiremt Oovrt, S. D. Nevo York. Februaiy, 1884.)
CusTOMS DuTiEB— Appraibbb not Allowed to Impeach Hib Own Valuation.
A merchant appraiser appointed under section 2930 of the Revised Statuteg
is a quasi judicial offlcer, and will not be permitted to testify to his own
neglect of duty. To permit the a^rards of the important tribimal, which con-
gress has established to appraise imported merchandise, to be overthrown on
the assertion of one of its members made years afterwai-ds, is clearly against
public policy. It is putting à premium upou inc&mpeteucy, iuaccuracy, and
fraud.
Motion for a New Trial.
D. H. Chamberlain and Eugène H. Lewis, for plaintiffs.
Elihu Root, U. S. Atty., and Samuel B. Clarke, Asst. U. S. Atty.,
for défendant.
Before Shipman and Coxe, JJ,
CoxB, J. On the twenty-ninth day of Jane, 1879, the plaintiffs im-
ported from Germany 34 cases of silk and cotton velvet, in two in-
voices, containing 10 and 24 cases respectively. The coUector desig-
nated two cases from the former and three from the latter invoice,
and they were sent to the public store for examination. The ap-
praiser advanced the entered value more than 10 per cent. The
plaintiffs, thereupon, gave notice of dissatisfaction under section 2930
of the Eevised Statutes. The coUeetor selected a merchant appraiser
to be associated with one of the gênerai appraisers for the purpose of
instituting a re-examination of the merchandise as provided by law.
Before entering upon his duties the merchant appraiser took the fol-
lowing oath :
"I, the undersigned, appointed by the collecter of the district of New York
to appraise a lot of silk and cotton velveta * * * do hereby solemnly
Bwear, diligently and faithfully to examine and inspect said lot of silic and
cotton velveta, and truly to report, to the best of my knowledge and belief ,
the actual market value, or wholeaale price thereof, at the period of the ex-
portation of the same to the United Statea in the principal markets of the
country from which the same was exported into the United States, in con-
formity with the provisiona of the several acts of congress providing for and
regulating the appraisement of imported merchandise, so belp me God."
Subsequently he made two reports, in which, after having stated
that he had examined the velvets with the gênerai appraiser, he cer-
tiâed that the actual market value or wholesale price of the goods
was correotly stated in the itemized scfaedules which followed. The
aggregate of his advance over the entered value was 9J per cent.
The gênerai appraiser also made reports advancing the goods 17 3-10
per cent. There being a disagreement, the collector adopted the lat-
ter valuation and levied the additional duty and penalty as required by
law. The plaintiffs insist that the reappraisal was invalid because
the merchant appraiser did not diligently and faithfully inspect the
^Bererseâ. See 8 Sap. Ct. Bep. 151.
OELBBBMAN V, HBBRITT. 409
goods. The cause was tried at the Pebruary Circuit, 1883, and re-
sulted in a verdict for the plaintiffs. The défendant now moves for
a new trial. Upon the trial, a former décision by Judge Shipman was
relied upon as supporting the proposition that an appraiser might be
called to impeach his own award. Although in that case — Passavant
V. The Collector — the merchant appraiser was permitted to testify,
the court did not hâve before it, or attempt to décide the question
now presented for considération. That question is: Was the mer-
chant appraiser a compétent witness to prove his owû negleet of duty ?
It is true that the counsel for the défendant might hâve made their
objections more definite. We are, however, of the opinion that the
exceptions to the admission of évidence and to the refusai of the court
to direct a verdict fairly entitle them to présent this question hère.
Randall v. B. é 0. R. Co. 3 Sup. Ct. Rep. 322; Gordon v. Butler, 105
U. S. 553.
Stripped of ail disguise the effort, on the part of the plaintiffs, was
to induce the merchant appraiser to testify that he had not done what
the law required him to do. In this they were partially successf ul,
if they had not been, no question, upon any theory, could hâve been
presented to the jury. In other words the only évidence of which to
predieate illegality in the appraisement came from the lips of a man
who took an oath that he would act legally, and subsequently certified
over his own signature that he had done so. Should this évidence
hâve been received ? Appraisers occupy the position of quasi judi-
cial officers, they hâve been aptly described as "législative référées."
Tappan v. U. S. 2 Mason, 406; Harris v. Robinson, 4 How. 336.
The merchant appraiser is presumed to be, and in fact is, the spécial
représentative of the importer, and quite naturally, as was demon-
strated by the évidence in this case, is somewhat biased against the
government. The examination which he is required to make may
take place when he is entirely alone, its extent is largely in his dis-
crétion. What he says of it and its sufficiency no one can contradict.
The government, if he is permitted to testify, is left remediless and
whoUy at his mercy.
Thus may the solemn and définitive conclusion of the tribunal
to which congresB has assigned the duty of placing a value upon
importtBjd merchandise, be attacked in a collatéral proceeding and
swept away by the testimony of a négligent, forgetf ul or dishonest ap-
praiser. The resuit, too, is infinitely more disastrous than in ordi-
nary actions where verdicts and décisions are set aside and new trials
ordered. No better illustration could be furnished than the verdict
in this case. The évidence was overwhelming and hardly disputed
that the goods were undervalued. The merchant appraiser admitted
this, the inference to be drawn from this testimony is, that, being
compelled to advanne the value, his sole anxiety was to relieve the
importer from the penalty; hence his valuation at 9J- per cent, ad-
vance. Notwithstanding this, the government loses the penalty not
éiO FBDBBAL BBPOBTBB.
only, but also the duty, ■wMeb upon the proof was clearly due. Mani-
festly the rules of évidence shûuld not be relaxed to produce a resuit
so inéquitable. ^ To permit the awards of this important législative
tribunal tO be overthrown upon the assertion of one of its members,
inade years aftervrards is, we think, clearly against publie policy. To
hold othèrwise, would be, in efîect, to allow the witness to deny bis
ôath and stultify himself by an impeachm!ent of bis own finding, — to
côntradict a record by spéculative and fallible testimony, in short it
would set a premium upon imcampetency, inaceuracy and fraud.
We do not intend to intimate that the évidence in the case at bar
establishes more than forgetfulnessj or perhaps, oarelessness on the»
part of the merchant appraiser. The mischief is in establishing a
rule under which arùple opportunity is given for a complète reversai
of the aphorisme — "Corruption wins not more than honesty."
We bave been referred to no case and are quite confident none can
be found where this précise question bas been detfided. The weight
of authority upon analogous questions, however, having référence to
jurors, référées, arbitrators, and commissioners sustains the position
hère taken. Every objection to them applies with equal or greater
force to an appraiser. What are the arguments against the admissi-
bility of this testimony ? It permits, it is said, a solemn record to
be attaoked by paroi évidence, and that too in a collatéral proceeding,
it permits a witness whose memory is clouded and confused by a
thousand intervening events to dispute the rectitude of a finding
made when ail was fresh and clear before him. It promotes litiga-
tion. It encourages bribery, trickery and fraud. Thèse are some of
the reasons; and which one of them does not apply to an appraiser?
If a judieial ofiBcer or a juror may not testify to misbehavior on hia
part; if appraisers or commissioners under state laws cannot be heard
to say that they did not suÊ&ciently view or examine the land alleged
to be damaged, if an arbitrator cannot impeaoh bis owu award, we
fail to find any reason, founded upon authority, why the évidence
hère should stand.
As the conclusion reached upon this branch of the case nécessitâtes a
new trial it will not be necessary to consider the other propositions
argued. It may be said, however, in view of ail the testimony,
and particularly that of the government appraiser, refreshed as it
was by sténographie notes taken at the time, showing the nature
of the esamination and the part taken by the merchant appraiser,
that the verdict should be set aside as against the weight of évi-
dence; itbeing established by a great prépondérance of testimony
that every requirement of law was earefully obeyed
New trial ordered.
Sbipuan, J., coneurs
ELaiN WAXCH 00. V. BVÂVtoïsa. iir.
Ei/GiN Watch Co. V. Spaulding, Collecter.
(Oireuit Conrt, N. D. Illinoi». January 22, 1884.)
CusTOMS DuTiES- Watch Enamhl.
The substance knowa as "watch enamel" is dutiable under sçhedule M of
section 2504, as "watch material," at 25 per cent, ad valorem, and not under
echedule B of the same section, at 40 per cent., as "manufactures of glass, or-
of which glass shall be a component material." Schcdule B was intented to
cover only manufactured articles of glass, and not the crude material.
At Law.
Storck & Schumann, for plaintiù.
Gen. Joseph B. Leake, Dist. Atty., for défendant.
Blodgbtt, J. The plaiutiff, about November 22, 1882, imported
an article which was charged by the inspector of customs a duty of 40
per cent, ad valorem under the last paragraph of sçhedule B, § 2504,
as "manufactures of glass, or of which glass shall be a component
material." The plaintiff paid the duty so imposed under protest, and
brings this suit to recover the excess of sueh duties, contending that
the article in question is dutiable as "watch material," under the last
paragraph but one of sçhedule M, § 2504, at 25 per cent, ad valorem.
The proof in the case shows that the article in question is known to
the trade as "watch enamel," and used only, so far as is disclosed by
the évidence, for enameling the faces or dials of watches. The proof
aiso shows that the composition of this commodity is a secret; that
the component parts of it are not known in this oountry; that it is
used by being pulverized and made into a paste which is spread upon
the copper disk which forms the base of the watch dial, and then
baked and polished, so as to bring it to a proper surface ; and the
proof fails to show that it is practically applied to any other use than
for enameling watch dials, although it is suggested that it is adapted
to use as an enamel for eloek faces, and perhaps might be used for
ecale columns in thermometers and similar instruments, and for other
purposes where a white enamel surface is désirable. I corne, there-
fore, to the conclusion that the article in question was imported by
the plaintiff solely for use as enamel for watches, and that this is the
only purpose for which it is at présent imported by importers and
used in this country, and the only use known for it to the trade, The
appearance of the article would seem to indicate that it is a vitreous
material ; at least the fracture would indicate that, and it may hâve
in its composition some of the material out of which glass is made;
but it seemsvery palpable to me that it is not a manufacture of glass;
it is not even crude or raw glass, and I therefore conolude that it
çomes clearly witbin the description of "watch material." It is there-
fore, in my estimation, "watch material," and not ajnannfacture of
glass. It is plain, I think, that the last paragraph of • ^sefeedule B,
412 FEDEBAL BEPOBTER.
"manufactures of glass, or of which glass is a component material,"
was intended to designate some manufactured article of glass, in form
for use aa such, and not crude or raw glass. It must be an article
which was fitted and adapted at the ^ime it was imported for some
purpose or use, and did not require further manipulation in order to
make it dutiable as a manufacture of glass.
Issue is found for the plaintiff.
Chioago Tibb & Spring Works Co. v. Spaulding, CoUector.
{Circuit Court, N. D. lUinoii. January 22, 1884.)
CtrsTOMS DuTiEs— Tire Blooms— Steel Pakti,t MANnpACTnKBD.
Held, that certain steel-tire blooms which had gone through several stages
in the process of manufacture, were dutiable at 45 per cent, as " articles of sieel
partially manufactured," and could not be classified as "steel not otherwise
provlded for," the duty upon whlch is only 30 per cent.
At Law.
Storck é Schumann, for plaintiff.
Gen. Joseph B. Leake, Dist. Atty., for défendant.
Blodgett, J. This is a suit to recover duties claimed by the plain-
tiffs to hâve been illegally charged upon certain Hteel-tire blooms im-
ported by plaintiff. The inspector of customs ciassed thèse blooms
under the paragraph of schedule E, § 2504, which reads as follows :
"AU manufacturers of steel, or of which steel shall be a component part,
not otherwise provided for, forty-five per cent, ad valorem. But ail articles
of steel partially manufactured, or of which steel shall be a component, not
otherwise provided for, shall pay the same rate of duty as if whoUy manu-
factured."
The plaintiffs msist tùat they should hâve been ciassed under an-
other paragraph of schedule E, as "steel in any form, not otherwise
provided for, thirty per cent, ad valorem." Payment of the duties
demanded was made by plaintiff and appeal taken to the secretary of
the treasury, who affirmed the action of the customs officer hère. The
proof shows that the steel-tire blooms in question are produced by
first casting a flat round ingot of steel somewhat in the shape of a
cheese, or grindstone with no hole through the center. It is then re-
heated and hammered so as to reduce its thickness, thereby compaet-
ing its grain or fiber; a hole is swaged through its center and it is
then hammered on the horn or beak of an anvil, thereby expanding its
ciroumferance and forming a grain or fiber in the circumferential di-
rection, and when intended for locomotive tires the rudiments of a
flange are formed or swaged also upon the buter periphery of the
circle. In this form thèse blooms are ready for rolling, and are im-
OmOAGO TIBB « SPBINO WOBES 00. V. SPAULDINa. 413
ported at this stage of development. On amving in this country
they are reheated and placed in the roUing-machine, where they are
rolled or spun into the size and shape adapting them for use for tires
for locomotive driving wheels or car wheels, and, after being rolled,
the inner and outer surfaces are turned and finished in a lathe. It
secms quite plain to me tbat \f ben imported tbese blooms had passed
througb an important stage in tbe progress of manufacture into steel
tires. They were something more tban ingots of steel or plain steel
blooms or bars. In the first place, the ingots were cast in a peculiar
shape, and the work which had been expended on them to bring them
from the ingot stage to tire blooms is shown, by the proof, to hâve
been equal to $10 or $15 per ton, and it was ail work for the spécifie
purpose of making them into steel tires and nothing else. The par-
ticular use to which they were to be applied was indicated from the
first by the shape in which thèse steel ingots were cast; the work
done not only iitted them for this spécifie use but it unâtted them, in
a degree, for any other use, and hence I conclude that thèse steel-tire
blooms were articles of steel partially manufactured. To use thèse
blooms for any other purpose, it would undoubtedly hâve been neces-
sary to undo much of the work which had been done upon them. I
am therefore of opinion that the duty in this case was rightfuUy
charged.
The case of Downing v. Robertson, unreported, in the Southern
district of New York, referred to by complainant's attorney on the
trial, involved the duties on plain steel blooms where the ingot had
been brought into the shape of planks or slabs by hammering or
rolling and from which railroad bars or bar steel could readily be
rolled, and at the stage where they could be and were readily adapt-
able to any other use for which steel was needed. This case, there-
fore, does not seem to me at ail in point for the purpose of settling
the question in thèse cases.
The issue must be found in this case foi: the défendant.
WiLSON and others ». Spaulding, CoUector.
lOireuit Court, JT. D. Illinoii. January 22, 1884
CosTous DtJTiBs— Tapfeta Gloves.
TafEeta gloves containing over 50 per cent, in value of silk and over 25 per
cent, of cotton are subject to a dutj of 50 per cent, ad valorem uuder the nintli
paragraph of schedule 4.
At Law.
Storck d Schumann, for plaintiffs.
Gen. Joseph B. Leake, Dist. Âtty., for défendant.
4:14 JBDBBAIi BBPOBTEB. '
Blodgett, J. This ia a suit to recover hack daties paîd by plain-
tiffs under protest, on three lots of "Taflfeta" gloves, imported by the
plaintiffs in March and September, 1882, the amount of duties which
plaintiffs claim was paid in exeeas of what was rightly chargeable,
being $129.30 in this particular case. The goods in question were
classed by the inspectors as oomposed of silk and cotton, "silk, chief
component of value," and eharged with an ad valorem duty of 60 per
cent., under the seventh paragraph of, schedule H, section 2504.
The plaintiffs, by the protest, claim that thèse goods contain 25 per
cent, or over in value of cotton, and are only dutiable at 50 per
cent, ad valorem, under the last clause of schedule H, and the provisô
of section 1 of the act of Pebruary 8, 1875, "amendatory of the cua-
toms and revenue law." By that act it is provided "that from and
after the date of the passage of this act, in lieu of the duties hereto-
fore imposed on the importations of the goods, wares, and merchan-
dise hereinafter specified, the foUowing rates of duties shall be ex-
acted, namely : * * * On ail goods, wares, and merohandise
not otherwise herein provided for,;made of silk, or of which silk is
the component material of chief value, irrespective of the classifica-
tion thereof for duty by or under previous laws, or of their commer-
cial désignation, sixty per centum ad valorem: -pTovideà that, this
act shall not apply to goods, wares, or merohandise which bave, as
a component material thereof, twenty-five per centum, or over, in
value, of cotton, flax, wool, or worsted."
The proof in this case shows without dispute that the gloves in this
case are composed of silk and cotton, and contain over 25 per cent.
of their value in cotton, but silk is the chief component of value ; that
is, they contain over 50 per cent, in value of silk. The duty upon
them is therefore not Specifically fixed by the act of February 8, 1875,
as the proviso in this act takes them ont of the 60 per cent, class,
and the only question is, under what law are they dutiable ? . Plain-
tiffs claim them to be dutiable under the ninth paragraph of schedule
H, while they were eharged with duty under the seventh paragraph
of schedule H. The paragraphs in schedule H, upon which the ques-
tions arise, read as foUows :
"(7) Silk vestings, pongees, shawls, scarfs, raantillas, pèlerines, handker-
chiefs, veils, laces, shirts, drawer», bonnets, bats, caps, turbans, chemisettes,
hose, mitts, aprons, stockings, gloves, suspenders, watch chains, webbing,
' braid, fringes, galloons, tassels, corda, and trimminga, and ready-made cloth-
ing, of silk, or of which ailk is the component material of chief value, aixty
per cent, ad valorem."
"(9) Manufactures of silk, or cf. which silk ia the component material oî
chief value, not otherwise provided for, fifty per centum ad valorem."
Sinee the passage of the act of February 8, 1875, several opinions
constrning it bave been given by the attorney gênerai and seoretary
of the treasury. Thèse opinions are reported in 15 Op. Atty. G«n.
51, and Décisions of Treasury Department for 1875, page 344, and
WïfjSON ». .SPAOIiDlHa. 415
Decisîona of the Treasury Department for 1876, page 133; and I infer
that underthe coiistmction of tbe la'vï^ giteij by thèse rulings the
practice of the customs ofificerB h as been to charge a duty of 60 per
cent, ad valorem on this olaB6 of goods, on the ground that they are
dpecifically dutiable as "silk gloves, under the seventh paragraph of
schedule H. It seems to me, howe-yer, that there is at least room
for a doubt whether any articles except ready-made clothing, com-
posed partly of silk and partly of cotton, and where silk is the chief
component of value, corne within the meaning of thé seventh para-
graph. It reads, "silk vestings, etc;" until we reach the words,. "ând
ready-made clothing of silk," and then proceeds, "or of which silk is
a component materialof chief value." And I think the f air gram-
matical construction of the sentence limita the application of the
words, "or of which silk is a component material of chief valuô,^' to
"ready-made clothing," and, that it was intended that the articles pre-
viously mentioned in the paragraph, such as "silk vestings," "gloves,"
etc., should be whoUy of silk in order to subject them to the 60 per
èént. ad valorem àxity. ■ -
But whether I am right or not as to the true reading of this seventh
paragraph, I think we must icertainly assume that congresa, by this
proviso to the first section of the act of 1876, intended that goods
oompoaed of silk and cotton; but Mrhich contained 25 per cent, or
ôver of cotton, shall not be dutiable at 60 per cent., else the excep-
tion by the proviso means Clothing. Why exclud« them from the
clause of the act immediately preceding this proviso, which makes
certain classes of goods dutiable at 60 per cent., and yet by construction
put them back into this seventh paragraph, in schedule H,' which
charges them with 60 pw cent, ad valorem duty. It ia the duty of
the court to give effect to ail the parts of the law, if it can be consist-
ently done; and, inasmuch as congress did not say by this proviso that
thèse gooda containing 25 per cent, or over of cotton should come in free
of duty, we must assume that they were still subject to some duty;
and the natural clause under which they fall, as they are to pay lesg
than 60 per cent, ad valoremi is the last clause of schedule H, which
makes them dutiable as "manufactures of silk, or of which silk is
the component material of chief value, not otherwise provided for, 50
per cent, ai valorem." They certainly respond to this définition,
und I therefore conclude that they are dutiable under this ninth
clause of schedule H.
, Thia view seems to me to harmonize the législation, and give effect
to ail the parts of the act of February 8, 1875, making it consistent
with itself and the previous législation of congresa on the subject.
The issue in this case, and the «aBes; that were tried with it, will
be found for the plaintiff.
416 rBDXBAIi BBPOBTBB.
Paibbanks and others v. Spaulding, Collector.
{Circuit CouH, N. D. Ittinoia. January 22, 1884.)
CUSTOMS DUTIES — SlIWilNB.
Stéarine is not to be classed as " tallow," but as a " manufacture of tallow,"
and as such is subject to a duty of 26 per cent.
At Law.
Storck é Schumann, for plaintiff.
Gen. Joseph B. Leake, Dist. Atty., for défendant.
Blodgett, J. In February, 1882, the plaintiffs imported two in-
voices of merchandise, entered as "tallow" and dutiable under sohed-
ule M of section 250é of the Eevised Statules. The article so entered
as "tallow" was classed by the inspector as "a manufacture of tallow"
under section 2516, and charged a duty at the rate of 20 per cent.
ad valorem. The plaintiffs paid, under protest, the duty so charged
and bring this suit to recover the différence between the amount paid
at the rate of 20 per cent, ad valorem and what would hâve been the
amount of the duty on this commodity had it been classed as tallow
and charged with duty at the rate of 1 per cent, per pound, as pro-
vided in schedule M, § 2504. The only question in the case is one
of fact, whether the article imported was tallow or a manufacture of
tallow, and the prépondérance of proof, I think, shows quite satis-
factorily that this imported article was stéarine, and that stéarine is
one of the products resulting from the manufacture of tallow. It is
a hard substance or residuum, left after extracting or pressing the
oil from the tallow, and the proof fuUy satisfies me that this is
stéarine — that it had passed through the process of pressing, and
wâs, at the time of its importation, a manufacture of tallow, and not
tallow in its natural condition. The plaintiffs' counsel also contends
that this article is entitled to corne in under the free list provided
for in section 2505, as "grease for use as soap stock only ; " but there
are, as it seems to me, two complète answers to this proposition:
First, that the protest claimed that the article was "tallow" and du-
tiable at 1 per cent, per pound, and he is confined to the case made
by his protest, under section 2931. Second, there is no proof that
this article is "grease for soap stock only." The court perbapa
might, from common knowledge, say any f atty substance can be used
in some way for the manufacture of soap, but I cannot say, and cer-
tainly the proof does not aid me in saying, that this stéarine is only
used for the manufacture of soaps.
There will be a finding, therefore, for the défendant.
KIBE V. ELEINS MiVMDp'a A 0^8 00. 417
Lëahy V. Spaulding, Collector.
(Cireuit Court, N. D. lUinots. January 22, 1884.)
CnSTOMS DCTIEB — SlIiK AND COTTON SHAWIS.
Certain sbawls worth 15 shillings and 6 pence, containing one shilling and
six pence worth of silk, and the rest cotton, held, subject to a duty of 35 per
cent, only, as "shawls, cotton chief value," instead of 60 per cent., aa "wear-
ing apparel, silk chief value."
At Law.
Storck é Schumann, for plaintiff.
Gen. Joseph B. Leake, Dist. Atty., for défendant.
Blodgett, J. The only question in this case is whether certain
shawls imported by the plaintiff and which were classed as "wearing
apparel, silk chief value," and charged with duty at the rate of 60
per cent, ad valorem, were improperly so classed and should hâve
been classed as "shawls, cotton chief value," and charged with duty
at 35 per cent, ad valorem. The proof shows, without dispute, that
much the larger component in value of thèse shawls is cotton. Ac-
cording to the proof *he value of thèse shawls was 15 shillings and
6 pence each, while, if ail cotton, they would hâve only cost 14 shil-
lings each, thus showing that they contained only a very small propor-
tion of silk, and that their value was not increased over 1 shilling
and 6 pence by the silk they contain.
The issues will be found for the plaintiff.
KiBK and another v. Elkins Manuf'o & Gas Go.'
[U^euit Court, B. D. Pen-Mylvania, February 13, 1884.)
Patent for Invention — Infeinoement.
Patent No. 201,536, for improvement in bronze alloys, not infringed by dé-
fendants métal or alloy, known as "Ajax Métal," in which copper, tin, and
arsenic occur in proportions diSerent from the proportions speciîSed in com-
plainant's patent.
Hearing on Bill, Answer, and Proofs.
This was a bill to restrain an infringement of .patent No. 201,536,
dated March 19, 1878, for improvement in bronze alloys, issued to
Edward G. Kirk.
H. T. Fenton, for complainants.
John G. Johnson, for respondents.
iReported by Albert B. Guilbert, Esq.. of the Philadelphia bar.
v.l9,no.6— 27
él8 ,u'.> .lirBDTiàà.'hKKPQVPtlt, :,
McliENNAN, J. The compound described and claîmed in the pai-
ent consists of copper, tin,, and arsenic, in the proportion of 75 to 90
parts of copper, 10 to 25 parts of tin, and one-fifth of 1 per cent, to
10 per cent, of arsenic to be added to the copper and tin when the
latter are at the melting point in the crucible. The patentée was not
the first to produce an alloy of copper and tin. The spécification shows
that castings of thèse metallic constitiients were made before the date
of the patent; and, indeed, the patent of Eandall, for a métal alloy of
copper, tin, and arsenic, is expressly referred to. The patentable
novelty of the described alloy consists, then, in the proportions in
•which the copper and tin are compounded and in the addition thereto,
in the process of melijing, of the préscribed quantity of arsenixî,' for
the purpose of deoxidizîng the naetallic oxides always found in ordi-
nary a.lloys of copper and tin. The only évidence of infringement is
furnished by analyses of'bôrings from several samples of Ajax métal
manufaetured by thé respoiidents. Tbese showit to be composed of
copper, tin, zinc, lead, ahd arfeenic; copper within the range of pro-
portion Btated in thé patent, tin and arsenic generally below thô mini-
mum proportion stated in^he patent, and lead and zinc in Varying
proportions, as high as 8 pet' cetit. What differential effect tipon the
charaçter and propertiès of the condpound results from the rèduced
proportions bi tin and ars'ehiç àiid the addition of lead and zinc we
are uninformed by the évidence; but it is clear that so far as the
eôiistitueiits of the twôcoïûpoonds are concerned they are nbt the
same. But the respondents deny that they hâve added arsenic to
the other metallic componentis of their alloy, and allégé that whatéVer
portion of arsenic it may be found to oontain was only in combination
with the copper, which they used in its natural state. This is fuUy
Bustained by the testimony of their superintendent, who was alone
cognizant of the ingrédients of their compound. He says he desired
to get rid,pf,,alljthe',areenic he ppssibly couldj and hence that no ar-
senic was artificially introduced; that he used only the copper of
commerce, which always contains more or less arsenic; and that he
began the use of this in the manufacture of Ajax métal in 1874, and
bas continued to use it since withoflt material change in proportions.
Considering, therefore, that the alloys manufaetured by the com-
plainants and the respondents, respectively, are not constituently
the same, and that the respondents bave not used arsenic except as
it may hâve been found in combination with commercial copper, and
that their use of this began in 1874, t^e cannot adjûdge them to be
infringers, and the bill mu&t therefore be dismissed, with costs.
GoLD & Stock Tel. Co. v. Peaboe and others. '
{Circuit Court, 8. D. New Tork. February 20, 1884.)
i'RELramART iNjascTioN— When to bb Qbantkd.
A preliminary in j unction will not be granted while ainother to the same eSect
is in force in a diflereat suit. . '
In Equity.
Edward N. pic kerson, Jr., ior orator. ' -
Roscoe Conkling and Samuel A. Duntan, for défendants.
Wheeler, J. This cause bas been heard on the motion of the ora»
tor for a preliminary in j unction toréstrain infringement of the second
claim of the orator's patent. In a prior suit in this court, so lately
brought by the orator against thèse same défendants that the tinoie
for an answer and taking of testimony has not yet expired, a prelim-
inary injunction restraining the défendants from inf ringing this second
and the third claims of the patent has, on motion of the orator, been
granted, and is still in force. The time for pleading in bar the pend-
ency of the first suit has not arrived. In an affidavit by an expert;
filed by the orator on this motion, it is statèd that he is familiâr with
the patent, and made an aflBdavit on the former motion, and that the
apparatus claimed to be an infringement on this motion "is in ail
material respects, so far as the second claim is concerned, the same
apparatus as that enjoined in the previous motion." The défendants
object to this mode of procédure by a new bill, and cite Wheeler v.
McCormick, 8 Blatchf. 267. The orator insists that it is proper to
file successive bills for successive infringements, and cited Higby v.
Columhia Rubber Go. 18 Fed. Rbp. 601. It is also urged in support
of the orator's position that the prior suit could not be maintained on
an infringement subséquent to the filing of that bill only; while this
may be, and that that may fail and this suceeed. That is one ground
stated by Woodruff, C. J., for maintaining the second suit in Wheeler
V. McCormick, although the principal ground was that the prior suit
-was in another district and circuit. That reason does not obtain hère,
however, as this case now stands, for it is adjudged in the prior suit,
and that adjudication still stands insisted upon by the orator, that
there was an infringement prior to thé filing of the former bill suffi-
cient to uphold it to an accounting and final decree. That thô accountj;
ing in that case would extend to the time of taking, and eover the
infringement now aimed at, is not at ail questioned. That distin-
guishes this case from what was said by Lowell, J., in Higby v. Golum-
bia Rubber Co. There the account had been closed, and although the
former injunction was in force a new bill would be neoessary to full
relief for the new infringement. It is also urged that as a proceeding
for contempt would be a harsher remedy than a motion for a new
injunction, the injunction might be granted On a case on which the
420 TSDBBAL SEPOBTEB.
défendants might not be adjudged guilty of contempt of the former
one, and espeeially where the proof would consist of ex parte affidavits.
But the processes of courts of equity are so flexible and capable of
being tempered to the justice and neoessities of every case, at ail its
stages and in ail its phases, that the différence between the forms does
not seem to be important. As thèse cases are now situated the modes
of proof on proceedings for contempt of the former injunction would
or might be precisely the same as upon this motion. The question
•whether the device sought now to be restrained infringes the second
claim is precisely the same as that w.hether it violâtes the former in-
junction. If it is not willful it need not be visited with punishment
as Buch. As the case is presented the question to be decided is pre-
cisely the same as that before decided between the same parties, the
adjudication of which is in force and covers ail that is asked for hère.
If it were necessary, or more fair, or more désirable, to make the former
injunction more spécifie by being directed at some device which the
orators claim to be an infringement and the défendants that it is not,
that end can be reached by motion in the pending cause as well as by
a new bill. Multiplioity of suits should be avoided when practicable,
and this multiplicity may well be avoided hère.
Under the circumstances of this case this motion is denied, but with-
out préjudice to auy motion or proceeding in the original cause.
Geeën V. Barnëy.
{Oircuit Court, D. Massachmetts. Februaiy 28, 1884.)
Patent— Lâches — Pending Litiqation.
Wlien the validity of a patent is in litigation, the patentée may, without be-
ing guilty of lâches, wait antil a décision is rendered before bringing suit against
infringers.
In Equity.
Allen Webster, for complainant.
B. F. Thurston, for défendant.
LowELL, J. This suit is brought upon the much-litigated reissued
patent, as both connsel hâve calléd it, granted to the plaintiff for driven
wells, May 9, 1871, No. 4,372. The validity of the patent is not
denied. The sum in dispute being small, it is made a question
whether the plaintiff should not be remitted to bis action at law.
The évidence tends to show a technical right to an injunction, and
a claim for some profits ; and I do not oonceive that I hâve a right,
under thèse circumstances, to dismiss the suit, tbough, as to the
costs, I will hear the parties. The usual license fee for a well for
domestic uses is $10, and for one for supplying water for steam-en-
GBBBN V. BÂBNET. 421
gînes, $125. The eomplainant understood the défendant to say, in
an interview which they had before suit waa brought, that he had
paid the oomplainant's agent the usual fee of $10 for one domestic
well, and had afterwards moved i^, as the défendant called it, — that
is, had taken up the pipes, and put them down in another place, —
which, according to the meaning of a license, as the plaintif inter-
préta it, requires a second royal ty to be paid. The fact is not proved.
There was a domestic well which was abandoned in 1873 and a new
one driven, but the évidence does not explain when, or by whom, the
first well was driven, or whether it had been licensed. The défend-
ant had recently bought the place in 1873, and there is an intimation
that the well was already there at that time. He paid the royalty in
1876 for the only domestic well which he now uses, or bas used,
since 1873; and in the absence of proof to the contrary, the presump-
tion is that he paid ail that the agent asked him to pay. Certain it
is that he did not move the well after he paid the royalty, but before.
In the same year (1873) the défendant made a driven well in the cel-
1er of his workshop, to supply his boiler, and used it for seven months,
when he discontinued the use of it, which he bas never resumed. It
does not appear that he has destroyed it, or taken up the pipes.
There is no reason to suppose that he will ever use it again; for the
water injured his boiler, and he laid pipes to the adjacent river, which
f urnishes a purer and better supply. In this state of faots, the plain-
tiff understood the défendant to be ready and to offer to pay $10 for
the double use of the domestic well; and he charged him with the
usual royalty of $125 for the "well used for engine," and says that he
refused to aecept anything unless the whole was settled. How near
the parties came to an agreement is not proved, nor whether the de-
fendant offered to pay anything for the seven months' use of the larger
well. It is plain, however, that the charge of $125, which is thé
priée of a perpétuai license, was excessive, unless it could be showii
(which seems highly improbable) that the defendant's profits for the
seven months were equal to that sum.
As to the point of lâches, so ably argued by the defendant's counsel.
This suit was brought in 1879, and the complainant's patent having
been and being still severely litigated, he could not be bound to pro-
ceed against ail supposed infringers, until at least the first decree in
his favor, which was made by Judge Bbnediot in 1876, (Colgate v.
Oold é Stock Tel. Co. 4 Ban. & A, 415;) and between that date
and 1879 he had, I do not doubt, a great deal of information to ob-
tain as to the facts of the numerous infringements.
I shall make an interlocutory decree for the plaintiff ; but neither
refer the case to a master, nor eettle the costs, until the parties hâve
had further opportunity to adiust their différences without more ex-
pense.
7XDBBAL KSPOSl'BB.
Bbaikabd ». EvBNma Post Ass'n.
(Circuit Qowri, D, Oonnecticut. February 14, 1884. )
Patent— Peevious State oï" thb Abt— Copt— Distributob.
Letters patent No. 149,092, for an improved galley-hoïder, designed to facil-
itate the orderly assortment of compositors' copy, are iuvalid for waat of pat-
entable novelty in the invention.
In Equity.
Chas. RoUin Bramard, for plaintiff.
Wm. Edgar Simonds, for défendant.
Shipman, J. This is a bill in equity for relief against the alleged
infringemeat of letters patent to Charles Eollin Brainard, No. 149,-
092, dated March 31, 187é, for an improvement in compositors' copy
distributors. The plaintiff is the owner of the patent.
The invention is describsd in the spécification as follows:
"My invention * * * consists in a galley-holdér provided with a séries
of compartments and pins or hooks, correspondingly lettered or numbered,
as hereinafter more fuUy set forth, the object being to keep tho copy properly
assorted, thus greatly facilitating and reduciog the expansé of proof-reading.
* * * It is well known to ail practical printers and proof-readers that, as
the compositors empty their matter into the différent galleys on the stand,
the copy is usually deposited into â common réceptacle, without regard to the
nature of the article or the order of setting. Prom this réceptacle the
proof-reader is obliged to hunt up or sélect the copy eorresponding with his
proof, frequently causing much confusion and delay when time is very im-
portant, especially when the ' takes ' are small. In the drawing it is an or-
dinary galley-stand, or holder, provided with compartments or slips, lettered
in regular order frôm A to M. Disposed in the upper part of the stand are
a séries of pins or hooks or copy-holders, lettered to correspond with the com-
partments. * * * When the coïnpositor goes to the 'bank' or 'dump'
to empty matter, instead of depositing his copy in a drawer, it is impaled on
the pin or hook in the stand eorresponding with the slip in which the galley
islocated. * * *»
The claim is for "the copy-distributer described, consisting of the
galley-holder, N, provided with compartments for galleys, and pins
or hooks for copy, correspondingly lettered, substantially as and for
the purpose specifled." The important question in the case is that
of patentability. To détermine this question, a knowledge of the ex-
act relation which the invention bore to the previous state of the art
is necessary. The case of Brainard v. Pulsifer, 7 Fed. Eep. 349,
was tried before Judge Lowell upon the patent and a "short stipu-
lation as to the state of the art and the thing which the défendants
use." So much of the stipulation as related to the history of the art
is as f ollowa :
"It is further stipulated and agreed that, prier to the grant of the corn-
plainant's, patent, it was customary to conduct the business of sorting copy
in daily newspaper printing offices substantially as follows: 'The copy was
BRAINABÏ) ». BVÉNING POST ASS'N. %23
eut in suîtable lengths, oalled, tectinically, ' takes,' and distributed in order
to the compositors in the office. When a compositor had set up his 'take'
he deposited the type set up by him on a galley upon the galley-bank, and
deposited the eopy from which he had set up the type in a drawer, or box, or
upon a table or shelf, or other réceptacle, for the proof-reader.' "
When proofs were submitted to the proof-reâder for correction he
was also farnisbed with the "copy," procured from the réceptacle on
or in whîoh it had been placed,
Upon this state of facts Judge Lowell susta,ined the patent, and
it seems to me that there was no reaspn for a dijQferent conclusion.
But it is now clearly shown that the New York <Su« office, in 1868,
and thereafter, and before the date of the patented: invention, used
the foUowing System : There was placed over thè dumping galley a
séries of lettered hooks, which were lettered to correspond with the
letters which, by the custom of the ofQce, were uniformly placed upon
the différent classes of matter to be put in type. The "takes" or
small pièces of copy were marked with their appropriate letter and
were numbered in numerical order and were gi?en tô the compositors,
each of whom placed his matter, wheii in type, upon a galley in the
galley-bank, and marked it with a tag to correspond with the letter
and number on his copy, and placed his copy on the hook which con-
tained the appropriate letter. Sometimes, instead of the tags, the
galleys were chalked with a letter to indicate where the copy contain-
ing the letters was placed.
In the Waterbury American office, for the greater part of the time
between 1868 and 1872, there was a System of lettered hooks and
spindles over the galley-bànk, tha letters or words indicating the
character of the copy to be placed on each hook. Copy was placed
upon the respective hooks, was taken therefrom by the compositors,
and when set in type was returned to the spindle and the type was
placed upon the galleys, which, though not designated, were "under-
stood, as a rule of the office, to correspond respectively with thé copy
hooks and holders."
It thus appears, espe'éially by the testimony from the Sun office,
that separate hooks for the réception of copy, correspôndingly let-
tered with the letters placed upon the copy, and designated upon the
type when placed in the galley, were used, and thus the dôlay f j-u
having to search through a large pile of copy for the needed slip was
avoided.
The improvement of the patentée consisted in having lettered hooks
to correspond with lettered galleys. When the art had arrived a't
lettering a séries of hooks to correspond with the letters systemati-
cally placed upon the copy, and marked upon the type when placed
in the galley, there does not'seem to me to haye been any inven-
tion in permanently lettering the galley to correspond with the let-
tering upori'the hooks. The only advance upon the simple System
of the corhparatively small Waterbury JLmenoaw office was the en-
424 FEDEBAIi BEFOBTEB.
largement of thé System so as to adapt it to the needs of a much
iarger newspaper, by the use of a greater number of lettered hooks,
and the lettering of the galleys instead of their being designated by
rule of the office and in the memory of the compositor.
The description of the invention which was given by the patentée
upon bis cross examination is as f ollows :
"When the compositor has emptied bis type on the galley, he is instructed»
by my invention, 149,092, to deposit bis copy on a réceptacle corresponding
to the galley where his matter is, or corresponding to the take-mark on his
copy and thereby keep the copy for that galley or article distinct and separate
from ail other copy or matter, for the more immédiate convenience of the
proof-reader, and without the labor usually entailed on a copy-sorter."
The invention thua described was substantially used in the Sun of-
fice, and the patented improvement was a convenient modification of,
bût not a substantial advance upôn, the Sun'a System.
Believing that the invention was not patentable, I hâve not exam-
ined the question of infringement.
The bili is dismissed.
Cahn V. WoNG TowN On.
{Circuit Court, D. Califomia. February 4, 1884.)
Patents— CoMBiNATioN op Separate Devices — Suboombination.
Thefact that a device, comprislng several patentable éléments, has beenpat-
ented as a whole, will not prevent the patentée from afterwards securing a
patent for a comblnatioa of any number of the éléments less than the whole,
provided he appplies for it before the lesser combination has been two vears in
public use.
In Equity.
M. A. Wkeaton, for complaînant
J. L. Boone, contra.
Sawyee, J., (prally.) This action is upon a patent. The patent
çonsists of lapping over two pièces of leather in making the seam of
a boot or any other work of the kind, running a Une of rivets along,
and then a Une of stitching on each eide of the Une of rivets, so as to
make a compact, tight seam. The plea sets up that the patentée in
this case, on a prior occasion, procured a patent, and that this other
and prior patent is for the same thing, with the addition of a pièce
of India rubber inserted between the two pièces of leather. The strip
of India rubber having been inserted, a Une of rivets is run along with
two Unes of stitching, one on each side of the Une of rivets, in the same
manner as in the second patent. The défendant claims that the
second patent is not a new invention; that it is merely a combina-
tion of a part of the éléments of the first patent, or of the prior in-
vention, and therefore that the second patent is void. as not covering
OAHN ». WONG TOWN ON. é25
a new invention. I think, probably, that would be tbe case if the pat-
entée were a différent inventer — if the patentée in the prior patent had
been a différent person from the patentée in the second, I am incliued
to think so. But the prior patentée is the same man, and doubtless
if he had made the invention at the time he obtained bis first
patent, he might bave got a patent for the subcombination, omitting
one élément — the slip of India rubber. And it does not appear in
the plea that this second invention bas been in public use or on sale
for more than two years, whereby it would be abandoned to the public.
The inventor failed, therefore, if he is the inventer of both at the^ame
time, to obtain a patent for ail he was entitled to. If he was the inven-
tor at that time, he was entitled to patent the second or subcombina-
tion of éléments, omitting the inserted strip of India rubber, as well
as the first combining ail the éléments. He might, perhaps, hâve
got a reissue covering both, if his invention of the subcombination is
Bufficiently indicated in the spécification of the first patent; but ,he
bas chosen to obtain an independent patent for the subcombination.
If he invented it at the same time with the other he might undoubt-
edly bave obtained a patent in the first instance. I think if it was pat-
entable with the additional élément of the India rubber, the subcom-
bination, without the addition of the India rubber, invented at the
same time, would be patentable. Justice Field says, in the Giant
Powder Case,^ that this is the proper mode of proceeding when there
is another invention for which an independent patent might hâve
been obtained, but bas been omitted. If he was the inventor of both
he was entitled to patent both, the subcombination without the strip
of India rubber, as well as the entire combination of the lapping of
the leather and the intervention of a pièce of India rubber to make
the seam tighter, and better still in combination with the line of rivets
and line of stitching on each side of it. He being the first person to
invent both, I think it was patentable as to both. He doubtless did
invent the subcombination as well as the entire combination at the
same time. He embraced the subcombination in the last patent
without the additional élément intervening; and it does not appear that
it was on sale for two years before the application for the last patent.
I think the plea, then, should be overruled. Âud it so ordered
»4 Fbd. Rbp. 720; 6 Fbp. Rkp. 197
426 fUSSBAIi BSPQfiïSQ.
Glouoesteb IsiNaiiAss & Glub Co. V. Ebooes and others.
Circuit Court D. Massachusetts. Pebruary 13, 1884.)
1. Patents— Extraction op Gélatine pkom Fish-Skins.
Letters patent No. 167,123, for a process.of extracting gélatine from flsh-
skins, sustained against letters No. 177,764, granted to another pergon for a
like process, and the latter held to be an infringement.
2. 8amb— Décisions op the Patbnt-Oppicb.
The décisions of tlie commissioner of patents, though entitled to great weight
upon questions of priority, are uot couclusive.
In Equity.
Browne, Holmes é Browne, for complainant.
. James È. Maynodier, for défendant.
Nklson, J. The original of the plaintiff's patent waa granted to
John S. Bogera, August 24, 1875, No. 167,123, for a new and useful
process of extracting gélatine or ichthyocolla from aalted fish-akins.
It was reissued June 1, 1880, No. 9,226, and again reiasued July 13,
1880, No. 9,296. The invention bas proved of great value commer-
cially, and it has certainly the merit of patentability. It la alao new,
unless it waa anticipated by Isaac. Stanwood, to whotn a patent waa
granted for the same procesa, May 23, 1876, No. 177,764, and reis-
sued May 17, 1881, No. 9,715. The spécifications and claims of both
the original and reissued patents of Eogers are the aame in aubstance,
the différence between them in phraseology being alight and imma-
material. In the aecond reisaue he atatea the process to be this :
"My invention is to utilize such salted skins of flsh; and in carrying it
out tlie tirst portion of it is to desait tlie skins, sueh portion of the process
causing the removal of the scales from the skins, it being accomplished by
soaking the skins in cool water, and agitating them therein sufDciently to ex-
tract the sait from them. ïhe water should be changed repeatedly until the
sait may hâve been separated from the skins, after vchieh they are to be put
into f resh water, which should be gradually heated to a boiling température,
and kept so for three hours, more or less, until the gélatine may hâve been
sufRciently extracted from the skins by the water so heated. Next, the su-
perfluous matter:or matters should be removed from the gelatinons solution
nowprocured, aiid it (the gelatinous solution) should be strained or flltered
in order to bbtain it in a purified state. Finally, the- liquid is to be suitably
evaporated by introducing the solution into pans or nioulds, or upon slabs,
and exposing to the atmosphère until it may be suificiently condensed for use,
whether as an article of food or as a glue for mechanical purposes."
His claim ia :
"The process, substantially as described, of obtaining gélatine from salted
fish-skins, it consisting in desalting and boiling them, separating from the
gelatinous solution so obtained the superfluous matter or matters, and reduc-
ing it (the solution) by evaporation to the necessary consistency for use, as
set forth."
The évidence shows that in the years 1872 and 1873 an extensive
business was carried on in Gloucestei', in the préparation of what ig
GLOUCESTER tBiNai;Aâ& * QtBB 00. ». BE00K8. 427
termed dessicated or boneless sait fish. The process of the manufacture
consisted in stripping off the skins aûd removing the bones from the
salted fish, and th,en cutting the flesh into suitable pièces and packing
it in boxes for the market. One resuit was the accumulation of great
quantities of the skins, then thought to be of no value for any pur-
pose, which the fish dealers found considérable difficulty in getting
rid of. In November, 1873, Eogers first conceived the ideax)f utiliz-
ing this \Faste substance as material for the manufacture of gélatine
or glue, and tegah his experiments at Gloucester. In the foUowing
autumn he had so far succeeded as to be able to place upon the mar-
ket samples of liquid glue extracted from salted fish-skins. On Feb-
ruary 27, 1875, he filed his application for a patent. Stanwood, who
was a manufacturer of glue from fish sounds, in Oloucester, begun
his experiments in the autumn of 1872, or the foUowing winter, and
by soaking and boiling the skins, and then drying the solution, suc-
ceeded in obtaining a liquid glue in small quàntities. But the glue
proving to be of inf erior qnality, and his customers findîng fault with
it, he abandotied his attémpts and did notrèsumethem until 1876,
after Eogers had obtainediiis patent. The évidence is conflicting on
this point, but upon the whole it is satisfactorily proved that every-
thing done by Stanwood prior to the Rogers patent was merely expéri-
mental, and that his experiments, suoh as they were, did not reach
the perfected process of Eogers. Experienced as he was in the manu-
facture of fish glue, he must bave appreciated the importance of a
new method by which this waste material could be made available as
glue stock in his business. The presumption is very strong that if he
had actually succeeded in discovering suoh a method, he would hâve
made more use of the discovery than he is shown to havé done.
When Stanwood applied for his reissue patent an interférence waa
declared between his application and Rogers' original patent. The
interférence was eontested by the parties^ and the décision of the pat-
ent office was in favor of Stanwood. The défendants rely in their
answer upon this décision as a final adjudication settlîng the question
of priority in favor of the Stanwood patent. But it is well settled
that the décisions of the commissioner of patents though entitled to
great weight on questions of priority, are not final, even between those
who bave been fuUy beard in the interférence. Union Paper Bag
Mach. Cû. v. Crâne, 1 Holmes, 429; Whipplev. Miner, 2S 0. G. 2236;
[S. C. 15 FED. Ebp. 117.]
The process uséd by the défendants in the manufacture of glue ia
identical with that of the Eogers patent, and infringes it.
Decree for complainants;
428 rSDERAJ, SBFOBISB.
Rayer & Lincoln Sbaming-Machinb Co. v. Ambbioan Pbintino Co.
(Circuit Court, £>. Masuaehuaetta. February 18, 1884.)
Patents— Reissue — Sbwing-Machinb.
The third daim of original letters patent No. 108,827 was for the combina-
tion of an annular plate wlth thestitching and feeding mechanism of a sewing-
machine, for the purpose of guiding the fabric. The first and third claims of
the reissue, No. 9,176, weie tor a wheel to feed as well as guide the fabric.
Hdd, that the reissue, being more than a mère reproduction of the original
-patent, was invalid aa against intervening rights.
In Equity.
T. W. Clarke, for complamant.
J. L. S. Roberts, for défendant.
Before Lowbll and Nelson, JJ.
Nelson, J. The plaintiif sues for the infringement of reissue pat-
ent No. 9,176, granted to Eayer & Lincoln, assignors by mesne as-
signments to the plaintif, April 27, 1880. The original patent, No.
108,827, was dated November 1, 1870. In the original patent the
invention is described as "a new and improved sewing-machine at-
tachment." In the spécification, the invention is said to consist in
certain improvements by which sewing-machines may be adapted to
sew the ends of pièces of goods of the same width, one pair after an-
other continuously, and to stitch ail kinds of goods where long, con-
tinuons seams are required. The invention is described with référ-
ence to any sewing-machine of suitable construction and size. D is
an annular plate supported in a vertical position by roUers hung in
a f rame, and so set that. its upper edge is behind the presser-foot and
needle-bar of the sewing-machine. In front of the plate there is af-
fixed to the frame a shield, covering ail but the upper part of the
plate. Â toothed ring is secured to the back of the plate, and meshes
into the teeth of a gear^wheel mounted on an arbor, which dérives
motion from the driving-shaft of the sewing-machine. Upon the edge
of the plate are hung a séries of hooks or points, wbioh eau be shifted
to conf orm to the width of the fabric. The pièces to be sewed to-
gether are hupg upon the hooks, and rest upon a shoulder projecting
from the plate, and upon the upper edge of the shield. A winged
wheel working in front serves to throw the sewed fabric off the hooks.
When in opération, the plate is designed to move correspondingly
with the feed of the sewing-machine. As the plate revolves with the
action of the sewing-machine, the pie6es are carried along to and
past the se wing -de vices,. and when sewed are thrown off as they ar-
rive at the winged wheel, the process being capable of continuous
répétition indefinitely.
The third claim of the original patent is thus stated :
"(3) The combination with stitching and feeding mechanism, substan-
tially such as described, of a continuoualy revolvina annular fabric-guide.
D, as and for tLe purpose set for th."
BAYEB A LINCOLN SEAHINa-HAOHINB 00. V. AUBB. PSINTINO 00. 429
In the reisBue patent the ioTention is called "an improvement in
Bewiug-maohines." In tbe spécification it is described with référence
to a Wilcox & Gibbs sewing-macbine baving tbe usaal rotable book-
sbaft and needle-bar, witb needle attacbed. In desoribing its advan-
tages tbe inventera state :
"In sewing-machines containing the usual Intermittingly rotated wheel-
feed, variations in speed affeet, through momentum, the length of stitch, and
the power required to run such a feed, and wear of machinery, and the cost
of mechanism, are ail greater than in this, our plan, wherein the feed is con-
tinuons, which always insures an equal length of stitch, and a substantially
unlform expenditure of power. With an annular feeding-plate, as described,
provided with points or hooks to penetrate and hold the fabric as it is mbved
along nnder the needle, we hâve conibined the well-known Wilcox & Gibbs
class of machine, the hook or looper of vyhich, as is well-known, rotâtes con-
tinuously in one direction, and may be run at the highest speed."
Tbe first and third claims, to wbicb alone the controversy relates'
are as foUows :
"(1) The within-described apparatus for sewing together the endsof pièces
of fabric for factory use, it consisting essentially of the stitch-forming
mechanism shown and described, the rotable annular feeding-wheel provided
with hooka to penetrate, carry, and présent the fabric positively to the ac-
tion of the said stitch-forming mechanism, and means to operate the said
feeding-wheel continuously as described.
"(3) The combination, with stitching mechanism substantially such as
described, of the continuously revolving annular baster plate or wheel to
feed the fabric, and mechanism to continuously revolve the baster-wheel,
substantially as described."
Tbe position of tbe plaintiff is tbat tbe tbird daim of the original
patent is substantially reproduced in the first and third claims of the
reissue. It is obvions, from the description given in the original spéc-
ification, tbat the thing patented was a device to be attached to a
sewing-macbine having a feeding mechanism of its own, and was de-
signed to carry along the pièces of cloth to be stitched together by a
movement to correspond with tbe movement of the feeding mecha-
nism of the sewing-macbine. It is câ/lled "a sewing-macbine attaob-
ment," and its object was to serve as a guide and support to the
pièces of oloth as tbey were carried along by tbe Bewing-machine.
It is apparent tbat the first and third claims of the reissue, taken in
connection with the spécification, cover a combination différent from
this. The combination, with tbe stitching and feeding mechanism
of a sewing-macbine, of the annular plate, D, to guide the fabric as
it is carried along by tbe feeding mechanism of tbe sewing-tnachine,
which was in substance the original claim, bas been expanded into a
combination with tbe stitching mechanism alone of à sewing-macbine,
of a feeding-wheel to feed as well as to guide the fabric, working in-
dependently of, and in substitution for, tbe feeding mechanism 6f
tbe sewing-macbine. A new funetion bas been added to tbe plate,
P. It is no longera mère attaohment to a complète sewing-macbine,
and a guide and support to tbe cloth as it ia moved along in the ma-
430 .î : : ;' FEDEBAL EEPOEÏER.
cEihe. It bas becdtne itself a feeding apparatus for a sewing-ma-
ekine,— ^a thing quite différent from the original invention. Under the
rule eatablished by tbe récent décisions of the suprême court, the
plaintifE's reissue patent was taken out too late, and must be held to
be invalid.
Bill disnvissed, with costs.
The Manhasset.
t District Court, E. D. Virginia, tebruary 24, 1884. j
1. AdMIRAJ/TT PRÀCTIOK— LiBBL— AîIBHtIMBHI.
In a case in admiralty wliere the res is the same, and the tort and the con-
tract for whlch damages are claimed are the saine, and where thé original libel
sets out matter enough by whlch to amend, a libel may be amended as to par-
ties by changing the character in which the libelant sues, and dismissing as to
the parties who hâve no right to sue.
2. Same— Action fob Dbath Oauskd bt NEauGENOB— Cohtbibutobt NEaLi*
GEKCB.
Where, in a libel for damages for the kil]ling of a husband and father, the
ferry steamer inflicting the injury was in fault, but the deçep,sod had violated
■ rules of thè managers, forbiddihg passengers to step ovér gùard-chains and
passing oS to the wharf beforé the boat was drawn up ànd made fast at the
landing, in doirig whicli deceased received fatal injuries, but in doine so only
did what men and boys habitually and eonstantly did oïl tho'fërry, without re-
straint or remonstrance .from the management, held, that this. was not such
contributory négligence on the part of deceased as lo exonerate tlie claimant»
from responsibility in damages,: the managers of the ferry having, by neglect-
ing to enforce their rules, held out to passengers that there was no practioal
danger in violating them, aiid thereby Jui the deceased ofl his guard as to the
danger attending the practicej which was habitually permittedi
In Admiralty, in a Libel for Damages.
After the décision rendered in this case on the question of juris-
diction, on the fifth of January, 1884, (18 Fed. Rep. 918,) the libelant
moved for leave to dismiss the original libel as to herself , as adminis-
tratrix of William H. Black, and to file an amended libel in her indi-
vidual character as widow of Blaok, and in her character as guardian
of tbe two minor children of the deceased. This motion was granted^
on the ground that the res was the same, the tor< and contract on
which tbeclaim for damages was leased was tbe same, and that the
prigihal libel contained ail thefacta as to parties that were necessary
to amàîd by. ,
, iWilliam H. Black, whose widow, Prancea Blaok, brin'p this libel^
■was II isolored man, 64 years old, who had irregùlar employment at
$2.50 a day in the oairpenter-shop df the United States navy-yard, at
GoÉport, opposite Norfolk, and lived on the Norfolk aide of Eliaabeth
river, some distance westwardof Norfolk, where he had a farm of
about 120 acres of land. Eetnrhiug from the navy-yard, after fail-
ing to get work, on the morning ot Maro'hi 18, 1881, the weathèr b6-:,
ing somewhat rainy, Black got upon the ferry-boat Manhasset to/
cross over to Norfolk. He was engaged in earnest conv&rsation, on
the passage, with George Mason, a colored deck-hand, on the subjeet
of politics. Tbe weight of testimony is that Black, on the approaoh.
of the boat to the Norfolk landmg,.had got outside the chaina which
are stretched as a guard in front of the gangwaya to.prevent ther
egress of paasengers and teams until the boat can be aeçured. It;
was also atated in évidence that he was, while, standing beyond the
chains, béfore the boat had touched the landing, still conversing withi
Mason, the deok-hand, who also had stepped beyond the chains. Thô;
weight of évidence is that thé chains were ail still up wheu Black
was at the front edge of the boat, conversing and ready to step off.
When the boat had got within 18 inches of the float, or dock, to which
it was to be fastened, Mason stepped off to hook the hoat'a chain to
a windlass, and to draw the boat up fast to the landing.- As Mason
stepped off for this purpose, Black also stepped off; in doing which,
Black's foot slipped, and he fell forward, with bis body partly upon
the float. Mason and another man seized hold of Black as he fell,
but were anable to di-aw him upon tbe float before the other foot
was caught and crushed by the boat, which was coming slowly with a
side motion to the float. Médical aid waa immediately brought to
Black, but bis injury terminated fatally on the morning of the .twjârity-
fifth of March, just one week after the accident happened;
At that time three chains were used as guards, in front of 'this
boat, to prevent the prématuré egriessof paasengers and teaœ,a. . One
small chain stretched across^the gangway of the white passengers;
on the right-hand side of the boat, one énd of which was fastened to
the side of the boat, and the othar hooked to a post on tbe left of
that gangway. A large chain stretched aoross the team gangway, in
tbe middle of the boat. A amall chain,. quite long, stretched across
the colored people's gangway on the léft of the boat, and also across
the team gangway in the middle, to the post on the right of the team
gangway, and hooked to the same post on which the small chain
across the white people's gangway was hooked. This long chain was
fastened to thé left side of the boat. The weight of évidence, as bts-
fore aaid, ia that ail of theae chains werô still up, and none of them
had beein lowered, when Black was, standing in front of , them, con-
versing with Mason, and rea;dyito step off to the floàt. ■ iKwas nat
Mason's duty to let down the chains at the; time of thé landing oJE the
boat; and he did not do so on tbe occasion of. this accidents It was
the duty of the white deck-hand, Montagtie,.tdi let theiohàinsdo'frn;;
and Montague swears, I think with trutb, that hehaânfït' let them
down before the accident happened io Blacki Mason'jï iHaceofduty,
on this occasion, was on tbe left side oî/thè boat,. forward 6f thè col-
ored peopte's gangway. Montagùe's place of du%' watf . on theafight
482 FXDSBi.Ii &EPOBTEB.
fiide of the team gangway at the post to vhîch one end of each of the
three chains that bave been described was hooked.
It is proved tbat it was tbe habit of men and apprentice boys to
pass off the boat before it had reached and had been made fast to
the dock, and that not unfrequently the chains were lowered by
passengers before the deck-hands in charge were at liberty to do so,
under the rules and régulations prescribed to them by the managers
of the ferry. It is not shown that the authorities of the ferry did
more than give very proper ordera for the safety of passengers, in
respect to keeping the gangways closed. It is not shown that they
did anything effectuai towards preventing the prématuré egress of
passengers during those critioal moments wbile the boat is ap-
proaching the dock, or took any practically effective measures for
preventing the habituai violation of their wise rules and régulations
in this respect. On the occasion on which Black received bis injury
several other persons are proved to bave passed over the chains and
stepped to the float before the boat had landed and been made fast.
It is proved that the principal ferries of the north bave adopted, and
hâve beenusing for several years, a patented set of gâtes, called "the
Frazee Patent Safety Gates," designed for preventing passengers
from incurring the hazard of injury by passing from ferry-boats be-
fore they bave been made fast.
W. H. é J. J. Burroughs, for libelant.
J. F. Cracker and Sharp é Hughes, for claimant.
Hughes, J. I think the foregoing statement of the facts of this
case embodies ail that is material to its décision. There is no doubt
that Ihe managers of the ferry-boats made good and wise rules for
seouring the safe transportation of passengers. Thèse rules forbade
ail persons to leave their beats until the guard-chains before the sev-
eral gangways were lowered; and rigidly forbade the deck-hands from
lowering the chains before tbe boats were drawn close to the dock
and made fast. That part of the évidence reflects the highest crédit
upon the management. The residue of the évidence, however, is less
satisfactory. It shows that men and apprentice boys habitually vio-
lated the rules of the ferry. It shows that this class of passengers
frequently themselves let down the chains which stretched in front of
the passenger gangways, without waiting for the deck-hands to do so;
and that they did this frequently, and when not doing it, habitually
got over the chains and leaped off the boats before they were drawn
up and made fast to the dock. It shows that this was ail done with-
out check or hinderance from the management of the ferries. Now it
it is but little short of mockery to say that rules, the best and wisost
conceivable for the safety of human life are made by common car-
riers, and at the same time to admit that they allow thèse rules to be
continually and habitually violated. The impatience of passengers
to precipitate themselves pell-mell off of ferry-boats is a matter of
constant observation; and the managers of well-regulated ferries else-
THB MiNHASSBTT. 433
where, in vîew oî this notorious and apparëntly uncontrollable pro-
peusity, acknowledge their obligation to provide against the dangers
attending it by adopting contrivances which physically prevent this
nnreasoning press oî passengera for egress, and effeotually insure
against the dangers incurred. I will not say that the ferry-boats
which ply across Norfolk harbor are under légal obligation (as one
or two other classes of common carriers are) to provide the latest and
most approved contrivances that bave been invented, for insuring the
safety of their passengers; but I am bound to say that it is their
duty to do more than adopt wise, cautionary rules for the purpose, — it
is their duty to take effectuai measures for enforcing, from ail pas-
sengers, a certain and absolute obédience to those rules.
The obligations of the carriers of passengers on this subject are laid
down by the courts in very stringent terms. Fédéral courts take the
lavr from the suprême court of the United States ; and that tribunal, in
a late case, (Penn. Co. v. Roy, 102 U. S. 455, 456,) reviewing previous
cases, deciared that when carriers undertake to convey persons by the
powerful and dangerous agency of steam, public policy requirea that
they shall be held to the greatest possible care and diligence; that the
Personal safety of passengers should not be left to the sport of chance
or the négligence of careless agents ; that although a carrier does not
warrant the safety of passengers at ail events, yet his undertaking
and liability as to passengers go to the extent that he or his agents
shall possess compétent skill, and, as far as human care and foresight
oan go, he will transport them safely; and that he is responsible for ail
injuries received by passengers, which might hâve been avoided by
the exercise on his part of extraordinary vigilance, aided by the high-
est skill.
Thèse propositions may be regarded as the settled and accepted
law of the subject in this country, and they are the law of this case.
The obligations of the authorities who controUed the Manhasset are
determined by them, and they show that there was fault on the part
of this ferry-boat; and therefore, if the accident which happened to
Black, a grown and sane man, had happened to a child ôr otber per-
son unpossessed of ordinary discrétion, the liability of the Manhas-
set would hâve been indisputable. But Black was a man of respon-
sible âge and discrétion ; and the law, tender as it is of the safety of
passengers on steam vehicles, yet lays down the counter-prinoiple
that eyery man is bound, no matter in what he may be engaged, to
use ordinary care for his own protection, and no man is bound to
use more; so that if a man of discrétion is négligent in taking care
of himself, and contnbutes by that négligence to bring upon himself
the accident by which he suffers, he, in gênerai, relieves the carrier
from the obligation of coœpensating him in damages.
The application of thèse counter doctrines of the rig^d responsibil-
ity of carriers to passengers, and of the contributory négligence of the
person injured, is one of the most diffîcult tasks that devolve upon
v.l9,no.6— 28
courts, and is especially diffioult in the présent oasè. The question
hère is, whether Black, by stepping over the guard-chains of the
ferry-boat and then attempting to leap from the beat to the float be-
fore she was made fast, "contributed" to the accident to such a de-
gree as, under ail the circumstances of the occasion, to exonerate the
boat from responsibility. That the boat was in faidt has already
been stated; that Black vn&a more or less reckless in his conduct ia
equally true ; and the question of law is whether his conduct was of
such a character as to relieve the boat of responsibility for the ac-
cident in damages. Now, if Black had not been a customary passen-
ger on that ferry, or if, of those who habitually made that passage,
he was the only person, or one of a few persons, who took the haz-
ard of passing the chains and leaping the chasm before the boat was
made fast, then the case would be free from much of its difficulty.
It would resemble in principle the case of Bailroad Co. \. Jones, 95
U. S. 439. But Black had passed the ferry often enough to know
what its authorities habitually allowed in respect to this matter. He
was familiar with the fact that passengers habitually overstepped the
chains and strided the chasm without hinderance or rebuke from
them. The managers thus gave out to the public, as if it was their
opinion, that the practice was praotically safe and unattended with
danger. Printed rules there may bave been; chains were in fact
stretched formally before the eyes of passengers; but passengers were
seen and notoriously known to disregard them by the half dozen or
dozen on every trip. The question, therefore, résolves itself into this :
was Black not thrown ofE his- guard ? Was it not held out to him
habitually by the managers, that, praotically, there was no danger?
Was anything presented to arrest his attention and to warn him of
the f ate which overtook him ? I think the évidence in the case leaves
room for but one answer to this, the crucial question of this case.
The case turns upon this question, because it is a principle of the
law of contributory négligence that a carrier ia not necesearily ex-
cused because the injured peraon knew that some danger existed
through the" carrier's neglect, and voluntarily incurred the danger.
Clayards v. Dethick, 12 Q. B. 439. Where, for instance, a traveler
çrossed a bridge which he knew to be 'somewhat unsafe, but which its
managers had not closed, nor warned the people not to pass, and
the traveler's horse fell through and was killed, it was held that
he was not in fault, and damages were recovered. Humphreys
v. Armstrong Co. 56 Pa. St. 204. So it was held that the plaintiff
might recover' where a passenger train was moving very slowly by,
but did not stop at a dépôt where it should hâve stopped, and a pas-
senger was injured by leaping off, iiotwithstanding the usual warning
that passengera must not get off the train while in motion, thè slow
gait of the train seeming to invite the passenger to get ofï. Filer v.
N. Y. Gent.B. Co. 49 N. Y. 47, Thèse cases aufficiently illnstratë
the principlèfc of the law of contributory négligence, that though the
THS MAHHASSBTT;i 48S
passenger must do what a prudent person shonld do to aroîd accident
in any partiçular circumstance, in which he may stand; yet if he bas
reaaon to infer from the conduct and policy of the carrier that no prac-
tical danger would attend an aot, though there miglit be some riak,
and if he is thereby thrown off his guard respecting it, the carrier is
liable.
I do not feel called upon to review the myriad of cases on this sub-
jeot which fill the reports of the coarts, or to dwell upon the confus-
ing and confounding nicèties of distinction which are drawn by the
text-writers in digesting thèse cases. SufHce it to say that I am of
opinion) though it bas beenarrived at with diffidence and some doubt,
that the Manhasset is liable in this action,
I will now allude to a question of jurisdiction which was raised at
bar, to the effeet that the tort in this case was not maritime, and
not within the cognizance of admiralty; inasmuch as Black, when
he fell upon the float, just as he received the injury to his foot, was,
as a matter of fact, on land, and not on the boat; it being certain
that if he had already got upqn the float, and was standing upon it,
the tort would not hâve been maritime. See The Plymouth, S Wall.
20, and The Mary Stewart, 5 Hughes, 812.* This view of the case is
defeated by the considération that the tort was inflicted by the boat
while Black was in the act of leaving her, and before he had com-
pleted the act of landing. But even if this were not so, it is only
with respect to torts that maritime locality is essentîal to the ad-
miralty jurisdiction. In respect to contracta the rule does not hold;
if the contract is maritine in its oharacter, the locality where it is
made is immaterial. In this case there was not only the tort of in-
flictiag an injury resulting in death, but a contract to oarry the pas-
senger and tp land him safely at Norfolk. The damages he received
wJU be of the double charaeter of a satisfaction for the breach of
contract and for the tort. But I insist that it was the boat which in-
flicted the injury, and that the injury was inflicted upon a part of
the body of the deceased man which hàd not yet landed, and which
was injured by reason of its being still on the water, I know that
this distinction would seem over-nicely drawn, but questions of law
very often dépend upon nice distinctions, and when they do it is
necessary to draw them.
Assuming, on the whole case, that the libelant is entitled to recover
damages, the flnal question is wbat thèse shonld be. The amount
dépends npon the question, how muoh of his eamings could the de-
ceased bave bestowed upon the libelants as their sustenance if he had
lived? He owned a farm; and that, of course, is still left to them.
Beyond this the évidence gives as but little to build au estimate
upon. His precarious employment and wages at the navy-yard
afford no certain basis f o)r a calcùlation. Driveu to conjeotnre, my
436 FEDEBAIi BBPOBTEB-
estimate must be very moderafe; the more moderate, as thîs man
had entered the period of old âge, and could not, in the course of
nature, be supposed to hâve continued long to spare from his own
support a surplus for the sustenance of those dépendent on him. It
is the custom and the duty of the young to support the aged when
they hâve entered the period of old âge. At the âge of 64 the tables
of vitality show that Black's expectation of life was seven years and
a half . If we assume that he could during this period of old âge
liave spared an average of $75 a year to the use of the libelants, then
we should arrive at an award of $562.50 as the damages to be al-
lowed, in this case. I will give a decree for that amount, and for the
costs of this suit.
Baeeb Salvagh Co. u. Thk Exoelsios.
IDiatTict Court, B. D. Virginia. February 20, 1884.)
Balvagb Service— Awahd.
A large passengor and freight steamer, worth $150,000, having a cargo worth
$10,000, was rua into by a tug, which stove a hole in her hull, some six by eight
feet in size, causing her to fill with water, and she was beached on Hampton
bar, in Hampton Koads. Salvors were telegraphed for, to Norfolk, nvho came
•with wrecking steamers, schooner, steam-tugs, pumps, and diving and wreck-
ing apparàtus. A diver went down, and, with plank and canvass, battened the
hole. Pumps were then set to work, which emptied the hull of the water.
The cargo was ail got oH without loss or damage. The steamer was floated, and
towed 12 miles into port at Norfolk. Ail further injury to the steamer or her
machinery was prevented. It was in December, and a severe storm from the
eastward could hâve wrecked the steamer. None occurred, and the work of the
salvors was accomplished within 48 hours. HM, that the service was a salvage
service, and that the reward should bear some relation to the value of the
property saved. Six thousand dollars decreed.
In Admiralty. Libel for salvage.
The passenger and freight steamer Exceisior, belonging to th& Po-
tomac Steam-boat Company, claimants in this sait, — Théodore E.Bald-
win, master, — ^left her wharf in Norfolk at 5 p. m. on the fourth of
December, 1882, on her regular trip to Washington City. She was
valued at |150,000. She had a cargo worth flO.OOO, and the usual
number of passengers, and her regular crew, on board. After pass-
ing Sewell'B point, and in making for the wharf at Portress Monroe,
she came in collision with the United States naval tug Fortune,
which drove a hole into her hull, on the starboard bow, some eight
by ten feet in dimensions. Capt. Baldwin immediately made for
Hampton bar, and at about 6 : 15 p. m. beached her about midway of
that bar, about four miles from Sewell's point, a mile from the Sol-
diers' Home, and a mile and a half from Old Point Comfort wharf.
She went upon, and lay nearly at right angles with, the bar; her bow
in six feet, and her stem in ten or eleven feet, water. She had fiUed
BAEBB BALVAOll 00. V. TSE EXOSLSIOB. 487
with \7ater, and laid easily o^ the bottom. The sea came ovef the
maindeck, aft, at high tide; but did not coverthedeckamid-shipsor
forward. Her cargo was amid-ahips, and was not reached by the water.
She was in a place on the bar, and in a position on the bottom, that
rendered her reasonably safe from f urther injury, except in the event
of roagh weatber from the eastward. In conséquence of the width of
her guards, which spread out from aboat three feet at the ends of the
steamer to ten or twelve feet at the wheel-houses, the waves of a
rough sea would beat under the guards, and endanger the deok and
the joiner work, and cabins above it, by lifting and breaking them up,
and carrying them away, thereby bringing the cargo and the lives of
those on board in péril.
It may be stated hère that a board of naval officers, appointed
afterwards for the purpose of inquiring into the collision, found that
the Fortune was in fault; and the United States government has since
compensated the claimants in damages from the accident to the
amount of $18,350.86. From thiscompatation of damages the amount
due the libelants for salvage in this case was reserved, (to be deter-
mined by this court,) as also a bill of $470.70, rendered by the libel-
ants, for services rendered the Excelsior during and after the salvage
service was rendered. The board of naval officers, which has been
mentioned, found that the direct damage to the Excelsior, done by the
Fortune, was $11,795.
After beaching his vessel, Capt. Baldwin went off to Old Point
Comfort, and from thence sent the following telegrams to the Baker
Wrecking Company, Norfolk :
'Tort Monroe, Va., Dec. 4, 1882.
"Send assistance, with steam-pumps, to Excelsior, on Hampton bar. Get
liere by low water. Baldwin."
This telegram reached the telegraph office in Norfolk at S p. m. on
that night. Capt. Stoddard answefed it from Berkeley,' but the
answer is not in the évidence. Capt. Baldwin's second telegram was
as foUowB :
«Dec. 4, 1882.
"Delay guarantied.
"Bring on steamer Kesolute a diver, with appliances.
"T. E. Baldwin."
This telegram reached the telegraph office at Norfolk at 9 : 15 p. m.
Capt. Stoddard, superintendent of the Baker Salvage Company, left
Berkeley shortly after 10 that night, on the wrecking steamer Eesô-
lute, with the wrecking schooner Scud in tow, with a diver and div-
ing apparatus, with a portable steam-pump and appliances, and
with other wrecking apparâtùs on board. Not knowing the position
' The east and south branches of Élizabeth river meet, and form Norfolk har-
l>or; Norfolk! bèing on the north, Fôrtsmouth oii' the south, and Berkeley in tb<*
f ork of the two rirers.
188 l-XBaitAL BS70STBB.
on the bar where the Excelsior waB, Capt. Stoddard went directly tô
Old Point wharf, reachingthere at midnight, and finding it high tide
at tbat point. Aiming to reach the Excelsior at low tide, as re-
quested by Gapt< Baldwin, Capt. Stoddard remained at the wharf
until the approach of morning, and then left for the Excelsior, which
he reaehed at daybreak. On meeting Capt. Baldwin, conversation
inimediately occurred between the two as to the terms on which
Capt. Stoddard was to proceed with the work for which he had been
snmmoned. Capt. Baldwin's statement, reduced after the conversa-
tion to writing, but never shown to Capt. Stoddard, was as follo*s :
"It was agreed that there was to be no salvage. The said Baker Salvage
Company agreed to raise and float the steamer Excelsior and tow her to Nor-
folk, Va. ; the work to be done as quickly as possible, the bills to be rendered,
and, in the event of the said Baker Salvage Company and the Potomae
Steam-boat Company not agreeing as to the amonnt charged for services ren-
dered, then the question was to be settled by arbitration,"
Capt. Stoddard, while positîvely denying any stipulation that there
shoald be "no salvage," snbstantially admits that there was an un-
derstanding as to arbitration in the event of a disputed bill for serv-
ices. The Excelsior lay about midway of Hamptoh bar, on its south
BÏde, about fifty to a hundred yarda frôm the channel. As before
said, she waa full of water and submerged to her main deek, the
water at high tide rising over the main deck aft. The hole that had
been driven into her by the Fortune extended from her hurricane
deck far down under the water. Most of her cargo was amid-ships,
free from the water. Capt. Stoddard put the wrecking schooner Scud
along-side, with a view to taking off the cargo. The diving appa-
ratus was put on board the steamer, and the diver sent down to make
examination into the extent of the wound which the steamer had re-
ceived. Meanwhile Capt. Stoddard went back with the Eesolute to
Old Point wharf, where he employed a number of laborers to aid in
handling the cargo, and procured a quantity of plank lumber with
which to batten up the hole in the hull of the Excelsior. Returning
with thèse laborers and this lumber to the steamer, the cargo was put
in course of being transferred on the Scud to Old Point wharf, and the
diver and his gang employed themselves in battening the hole in the
hull. The removal of the cargo was successfully effected without any
loss or damage by the latter part of the afternoon of the 5th ; the of-
ficers and crew of the Excelsior rèndering assistance in the work,
and the two wrecking vessels making two or three trips each to the
wharf. The diver and his assistants could not complète their task
that day, and had to suspend work at nightfall tUl morning. At
night a breeze set in from the eastward, producing a rather rough
sea, and creating appréhensions in the minds of the officers of the
two steamers. At Capt. Baldwin's request, the Eesolute was put on
the starboard (windward) side of the Excelsior and made fast to her,
with fenders placed to prevent injury to the guards and sides of the
BAEEB SAIiTAQH 00. V. THB BXOELBIOB. 4S9
vessels. While the sea continùed rough,:it waa a laborious task te
keep thèse fenders in place, and to replace such of them as would be
crushed between the two: steamers. This task and that of keeping
the vessels lashed together, subjected the seamen engaged to more or
less danger of limb and life. The Eesolute also was in more danger,
lashed to the sunken steamer, in the event of a storm, than if ahe
had been at anchor ont in the harbor. -The object of baving the Ees-
olute close at hand was to be in readiness to savô life in the event of
a storm. Portunately, however, instead of the breeze increasing on
the night of the 5th, it ceased about 1 o'clock, and the weather con-
tinùed good from that time until the enterprise was finally completed.
The portable steam-pump of the Baker Company had been set up
on the Excelsior in the afternoon of the 5th. On the next morning
the diver and his gang resumed their work, and were assisted in put-
ting canvass over the planking by the action ôf the portable pump,
•wbich had been made ready for use the afternoon bet'ore. The sta-
tionary pump on the Eesolute was, on that morning, put in connec-
tion with the opérations on the Excelsior in such manner as to be
ready to render effectuai assistance. About 12 m. on the 6th the
driver completed his task of stopping the holeinthe huU with plank,
and covering it with canvass, and both pumps were set tô work at
their fuU capacity. The wrecking steam-tug Olive BakerVbad been
before that time orderedtothe assistance of Gapt. Stoddard, and hadft
tow-line attached to the Excelsior. By about 2 p. m. the pumps had
done their work so effectually that the steamer went aioat in tow
of the Olive Baker, She was soon afterwards got under way, and,
with the further assistance of the wrecking steamer Victoria J, Peed,
belonging to the Baker Company, and their tug Olive Brancb, waa
towed to her wharf at Norfolk; the pumps being wofked during tbei
voyaj^e by the Eesolute. The latter steamer lay by her at her wharf-
at Norfolk, on the night of the 6th, doing such pùmping as occasion
required. During the voyage from Hampton bar to Norfolk there
was, of course, no other coyering upon: the hole in the Excelsior's hull
but of inch pine plank, overlaid with canvass, whieh was liable to be
punctured by encounter with logs or other hard substances in the
channel. This danger rendered it necessary to provide every précau-
tion against such an accident, by whieh she might be sunk to the bot-
tom of the channel. During the period of this service the.libelants!
tug Nettie was employed in errands between Berkeley ahd Old Point,
under the direction of Capt. Stoddard. Before .the Excelgior left
Norfolk to go to Baltimore for repairs, certain necessary work was
put upon and done for her by the libelants, to the value oL$é7.0.7<)j
as assesaedrby the board of naval. officers. before mentioned. Thèse
are the subjects of a second libel. The libelants are a corporation
chartered expressly, as a wrecking and salvaga oompany, and exp^nr
sively and elaborately equipped with wrecking steamers, tugs^-Jife-
boats, steam-pumps, donkey-engines, heavy and light anchors, chains,
440 FEDERAL BSPOBTEB.
cables, falls, diving apparatus, and skilled wreckers and divers, and
are capable of rendering prompt and effectuai salvage service, at short
notice, on the Atlantic and Golf coasts, and in the West Indies.
Ellis ê Kerr, for libelants.
White â Garrett, for olaimants.
Edmund Waddill, U. S. Atty., and Sharp â Hughes, for the United
States.
Hughes, J. Obviously, the service rendered by thèse libelants to
the Excelsior was a meritorious salvage service. They were tele-
graphed for as salvors. They left Norfolk and went to the Excelsior
for the purpose of rendering salvage service. If their agent, Capt.
Stoddard, had assented to the protestation of Capt. Baldwin that this
was not to be a salvage service, he would not bave altered the f act, or
destroyed the rights of bis employés as salvors, or changed the char-
acterof the service already entered upon. It is not the policyof the
law maritime, when a vessel is in péril and has invoked the services
of salvors, and thèse hâve gone to her for the purpose of rendering
salvage assistance, to listen to stories of sharp bargains, driven at the
instant, in the endeavor to change the character and lower the grade
of the service about to be rendered. The law of the subject is laid
down by the United States suprême court in the case of The Camanche,
8 Wall. 477, in which the answer alleged that the services were ren-
dered under an agreement for a fixed sum, and were therefore not
salvage services. The court said : "An agreement of the kind sug-
gested is no défense to a meritorious claim for salvage, unless it is set
np in the answer with an averment of tender or payment." In the
présent case there was no fixed sum agreed upon, and, of course, none
tendered. There was an agreement that the compensation should be
left to arbitration, in the event of a future disagreement as to the
amount to be paid. As to such agreements, the suprême court of
the United States, in The Camanche Case, said that "nothing short of
a contract to pay a given sum for the services to be rendered, or a
binding engagement to pay at ail e vents, whether successful or un-
successful in the enterprise, will operate as a bar to a meritorious
claim for salvage." This, therefore, was a salvage service, and it is
an attribute of such a service that it entitles the salvor not merely to
the ordinary compensation for work and labor performed, materials
f umished, and money laid ont and expended, — which are allowed and
are computed at the usual rates commanded in the market by such
services, — but to a reward in addition, given on the principle of en-
couraging daring and enterprising men to be in readiness, and to be
prompt and adventurous, in giving aid to ships in distress, and rescu-
ing lives and property in péril of the sea. The reward is gauged ac-
cording to the péril in which the persons or property rescued may be ;
and if 4he thing saved be property, according, in some degree, to its
value.
BJLEEB SAIiYAOB CO. V. THE EZOELSIOB. éél
In one respect this was a bighly merîtorious salvage service; for
ail the cargo was saved, without any loss or damage whatever, and
the ship herself was saved without damage of any sort to her beyond
what she had received in the collision which sunk her. This being
indisputably so, the only further point of inquiry is as to the danger
in which the Excelsior and her cargo were, from which they were
taken by the salvors; and as to the hazard encountered by the salvors,
and their vessels and material, in the course of the service which they
rendered. That a large and expensively furnished bay and river
steamer, with first-class boilers, engines, and maehinery in her hold,
lying full of water on the bottom, at a place where a heavy sea could
easily effect her destruction, was in very great possible danger, is quite
clear. This danger of possible destruction on a December night,
tbough not certain, was imminent, and depended entirely on the
caprice of the winds. The danger of greater or less injury to her ma-
ehinery, her huU, her joiner-work, and cabins, and her decks, from
lying in the water submerged, with a hole in her sides of 50 super-
ficial feet, was certain and absolute. She could not be removed from
the position in which she was until the hole in her huU was closed, and
made water-tight. This needed to be speedily and effectually done ;
it needed the services of one who was not only an experienced diver,
but a workman of skill; and of the greater skill from the work hav-
ing to be done under water. Not only was such a diver with such
expérience absolutely requisite, but after he had accomplished his
task, and to some extent while it was in progress, steam-pumps of
exceptional size, power, and efficiency were necessary to empty the
ship of the water with which she was full, and to empty it expe-
ditiously, without mishap or delay. And, after the vessel was thus —
by the work of the diver ànd of the pumps — made ready to be floated,
it was of the highest importance that towing appliances and vessels
should be in readiness to take the ship promptly into port, thor-
oughly guarded from the peradventure of accident to her frail and
weakened huU at every step. AU this was accomplished in a thor-
oughly skillful and successful manner by the salvors.
The complainants hâve not shown that there were other skilled
persons, with ample outfit of divers, steamers, and wr^ckiug vessels
and apparatus, at hand, by whose instrumentality this ship and her
cargo could hâve been rescued from the danger they were in, speed-
ily enough to bave prevented the irréparable damages that would
bave resulted from her lying long in the water. That fact could not
bave been proved ; and this court bas had sUch an itération of évi-
dence in such a large number of cases to the same effect, that it is
now at liberty to assume, until the contrary is shown, that the Baker
Salvage Company is the only fuUy equipped wrecking oompany avail-
able at ail times for the most arduous and difficult salvage work, that
is to be found anywhere south of the Delaware capes on the Atlantic
seaboard. I think the danger of injury which the Excelsior was in
4é3 fEDBSAZi BBPOBTEB.
was Vèry great; ànd sh6 was certaMy in danger of possible destruc-
tion from a rough sea, if one bad set in, which, by thumping up
undèr her very wide gûards, tnight bave lifted and ripped up her
main deck, and brokén up and wrecked ail that was above it. Pos-
sible danger, which chanoed not to bave actually oecurred, to a vessel
in danger, mày always be conaidered as interpreting the spirit with
which the salvors worked, and illustrating the merit of their eon-
duet; but is seldom œade, of itself, the ground of materially increas-
ing'their reward. As to the danger in which the Kesolute and her
clfëw were during the rough part of the night of the fifth of Decem-
ber, I do not think it was aotually great. That there was ground for
àpptehehding danger is proved by- Capt., Baldwin having requested
that thé Eèsolute flhould lie close along-side of him; and that the
Eesolute was by Capt. Stodda;rd willingly subjected to the risk of
tàking that position, shows that the salvors were ready and prompt
to enoounter the risks incident to salvage service. On the whole, I
think this was a meritorious salvage service, deserving high commen-
dation for the spirit, skill, and success with which it was rendéred ;
but not of high grade when considèred with référence to the risks
and dangers incident to it; yet of stiffieient merit in both respects to
justify a graduation of the reward in some degree by the value of the
property saved.
Exoept for the sttess laid by claimants' counsel upon the mattér»
it would hardly be worthwhile to indicate the marked distinction be-
tween this case and the case of the same steamer Excelsior, when, in
December, 1881, she was by accident rdn on Hampton bar, not far
from whére she was beached by Capt. Baldwin. For the first base
see 5 Hughes, 416. There is in faet no similarity between the two
cases, except that the vessel was the same and the bar on which she
Tvas gïounded the same. In thé former case, the Exôelsior wâs merely
aground, thoùgh so fast aground, by reason of her bottom being ex-
ceptionally broad and flat, that she oould not be pulled off by tugs,
and resort had to be made to wreôking anchors and cables. It is
true that the services of a wrecker were called for, and theapparatus
of wreckers employed. By the use of thèse means, and by taking
a,dvantage of .the tides, which were waited for, the steamer was floated,
and then proceeded on her voyage. She had been merely delayed.
I believe none of her cargo was removed. On the authority of abun-
dant précédent, I held that the casé was one of salvage, but of salvage
of a very low grade. It was more than a case of tugging and towing.
It w^as a case for the use of wrecking anchors and cables, and for
wrecking services. On this ground alone, I allowed, in addiîioh to
compensation by the rule of quantum meruit, a reward of $350. It
was not a case for the reward to be made to bear any relation to tha
value of the property saved, which then was $180,000.
In contrasting the présent case with that, it is unnecessary to ad-
vert further than already donc to the circumstances under which the
BÂKBB SàLiVAQB OÙ. V, TBS BXOEIiSIOB. 4é3
pïesent libelants found theExcelsior in Hampton roads,— sunk to her
main deck on the bottom ; fuil of water ; with a àole in her hull, graph-:
ically described by one of the witneases as "big enough for a street
car to pass through;" with $10,000 worth of cargo on board nearly
reached by water, on the main deck; with this deck and ail above it
liable to be lifted off and broken up by a heavy sea from the east-
ward; and with injuries inflicted by collision upon her hull to an extent
then painfully and apprehensively unknown, but since discovered to
be more than $10,000 could repair. The only éléments of safety in
the condition of the Exoelsior were that she was squarely bottomed
on one of the bars which skirt Hampton roads, and that she wae witbin
12 miles of Norfolk, on the border of one of the safest anchorages and
most capacious roadsteads for shipping in the world, ïhe suopess
with which she was saved, with ail her cargo, was due to two causes,
viz. : First, to the accident that no heavy wind or sea arose during the
42 December hours when she lay on the bottom ; and, second, to the con-
Bummate skill with which the salvors performed their work. Though
the former accident, that of good weather, may go to the diminution
of the salvage reward, the latter should'not, It is the characteristic
of thèse salvors that, whenever success is possible, they perform their
work with such facility and perfect success as to produce the impres-
sion on those who are benefited that their labors hâve not been diffi-
<juit enough to deserve a libéral compensation. Such an objection is
faulty both in its logic and justice, and I cannot accède to it.
As to what claimants' counsel say of "harbor service," Hampton
roads is rather an inland sea than a harbor. It is an anchdrage and
roadstead, into which sea-going vessels put for eafety by handreds,
without a thought of going into port. It is surrounded by heàdlands,
flats, and bars, and there are but two wharves on its entire boundary,
and thèse run out far from land in reaching the channel.
The services rendered by the libelants to the Excelsior in this case
were of the same character, though not as tedious, laborious, or diffi-
cult, as those which were rendered within the harbor of San Francisco
in the case of The Camanche, 8 Wall. 448, where the award was one-
third of the value of the property saved, where only a part of the
property at risk was saved, and where the service was what counsel
calls "harbor service." The work there was divers' work, and that of
powerful lifting machinery. It was done in the harbor, and in per-
fect safety, except as to the accidents ordinarily incident to diving
and the handling of machinery. Yet in that case, where there was
no sea danger, normuch danger of any sort, the award was, as before
stated, one-third of the value of that portion of the sunken property
which was saved— $25,000 for $75,000.
The case of Tke Blackwall, 10 Wall. 1, was also a notable case of
harbor service, in w^ich for a half-hoùr's work with city fire-engines
on board oiE a harbor tug, a fire on a ship was put out, and $10,000
awarded for sa ving property worth $iOO, 000.
444 FEDEBA^i BEPOBTEB. ^
Salvage services are rewarded in proportion to the danger attend-
ing them, to the péril from which the property was rescued, and to the
energy, promptitude, skill, and success with which the salvage is af-
fected. When of the requisite grade in thèse respects, the amount
awarded is âxed with some référence to the values saved. In this case
I will give a deoree for 3^ per cent, of those values, or $5,600. In
the second libel filed I will give a decree for the amount claimed, or
$470.70.
The libelants claimed in argument 10 per cent, of the value of the
property recovered, or $16,000; but as a compromise, to avoid the
neeessity of suing, reduced the amount of the bill presented to $10,-
000. I do not, in view of ail the eircumstances of the case, feel jus-
tified in awarding a larger amount than $6,000, as above atated.
Blowers V. One WirE Rope Cable.
(IHstrict Court, S. D. New York. Janiuiry 18, 1884.)
1. Shipping — Preight, Lien fok.
A barge has presumptively a lien for her freight upon the goods laden on
board, which is not waived by any provisions of the contract of hire not abso-
lutely incompatible with the enforceraent of the lien at the time of delivery.
2. Samb— 'Contract to Takb on Board Wirb Cable.
A contract to take on board wire cable in New York to be laid in the Erie
canal, freight, the hire of the barge, at a perdiem rate, to be paid as soon as the
cable is laid, is not incompatible with such a lien, and with proceedings to en-
force it at once in default of payment as agreed.
3. Same— PRrvATB Arrangement bbtwbbn Manupactitbbr and Owner.
Where wire cable was laden on board a barge by the manufacturer, pursuant
to an agreement between the shipper and the owner of the barge, of which
the manufacturer was chargeable with knowledge, held, that the barge had a
lien upon the cable for her freight pursuant to the contract, and that such lien
was not aflected by the private arrangement between the manufacturer and
shipper, not known tothe libelant, that the cable should be paid foron delivery,
nor by the fact thaf the raanuf acturers, upon corapleting the lading of the cable,
kept the shore end fast upon their premises, so as not to permit the departure of
the barge with the cable abroad. Held, also, that the cable, as between the man-
ufacturers and the libelant, must be regarded as laden on account of the libel-
ant's contract, and as the goods of the shipper, and that the manufacturera
were estopped from denying this, as respects the libelant, although, as between
the manufacturers and the shipper, the title may not hâve passed.
4. Same — Lien Arises, when.
A maritime lien for freight arises from the time the goods are laden on
board.
6. Same — Lien as against Mandi-acturbr.
As the barge under her contract with the shipper would, as against him, be
entltled to a lien on the goods during the time the vossel was detained by reaso n
of his not fulfllling his contract with the libelant, hdd, that the lien existed to
the same extent as against the manufacturers, who, fer their own beneflt, had
held the vessel fast by the shore e.nd of of the cable until they removed the ca-
ble under the stipulation given in this suit.
BLOWEBS V. ONB WIBB BOPB OABIiZ. 4é5
The libel in this case was filed by the owner of the barge B. M.
Greenman, to recover freight under an agreement for the transporta-
tion of some 15 miles of wire rope cable from the city of New York,
to be laid in the Erie canal. The charter was executed on Septem-
ber 10, 1880, between the New York Steam Cable Company and the
libelant, whereby the latter agreed "to furnish the canal-boat E. M.
Greenman, of Buffalo, for the purpose of taking on board and laying
in the Erie canal a quantity of cable of the parties of the second part,
the boat to be maintained in good condition and sufficiently manned,
at $5 per day from the time of commencing to load until reaching
the Erie canal at West Troy, after which $6.50 per day, until fully
unloaded;" aad the cable company thereby agreed "to pay the sum
above mentioned upon performance of the agreement." At the time
the charter was signed the cable company had agreed with the Wire
Eope Manufacturing Company, by verbal contract, for the manufac-
ture at its factory, near the wharf at One Hundred and Fiftieth street,
Harlem, of the cable in question, to be delivered along-side the wharf,
on board of a boat to be sent by the cable company, as the cable was
manufactured ; and upon delivery to be paid for by the cable com-
pany, one-haif in cash and the other half in stock of that company.
The manufacturing company also agreed, as part of the contract, to
pay to the cable company one-half of the expense of the boat during
the time it lay at the wharf taking the cable aboard.
The président of the cable company, after this agreement, procured
the libelant's boat to be sent to the wharf under the above charter,
where it arrived on the thirteenth of September, 1880. The cable
was manufactured and put on board by the manufacturing company,
at the rate of about a mile a day, and the lading completed on the third
of October, 1880. The qable lay in a single coil extending the whole
length of the barge, fore and aft, but running ashore into the manu-
facturing company's factory and there connected with the machinery,
but was not eut off or let loose so that the barge could départ. The
maniaf acturers thereupon demanded pay for the cable according to the
terms of the contract with the cable company, but not obtaining the
cash payment agreed on, eontinued to hold the shore end of the cable
fastened to their premises. Numerous interviews took place between
the agents of the two companies and the libelant, having référence to
the payment of their respective demands. The cable company, during
the three or four months foUowing, paid the libeknt, as his boat lay
at the wharf, some 10 payments, amounting altogether to not quite
$200, and the agent of the manufacturing company, at the request of
the président of the cable company, paid the libelant the sum of
$52.50, on account of its one-half part of the expenses of the boat
while lying at the wharf and receiving the cable on board, pursuant
to the agreement between the two companies. The cable company
became insolvent, and went into the hands of a receiver, who declined
to interfère in the matter.
-<té6 rEDBBAIi BEPOBTEB.
In the spring and summer of 1881, the barge remairiing ail the
timë at the wharf, and the shore end of the cable still f astened in the
manufactory, the libelant or his' attorney, in several interviews and
letters, required payment of the amount due the boat under the agree-
ment, and that she be released by the removal of the cable, and
threatened to remove it himself if this was not done. The vice prési-
dent and superintendent of the manufacturing company always ob-
jected to this, and throughout this long period encouraged the libelant
in the expectation that ail diffioulties would be settled through the
action of the cable company or its président, Mr. Foote, and fre-
quently forbade removal of the wire f rom the barge. On the nineteenth
of July, 1881, the présent libel wasfiled against the cable for the libel-
ant's claim. The manufacturing company appeared as claimants,
and thereupon removed it from the barge, and, intheir défense to thé
action, claimed that under the charter no lien attached; and, second,
that there was no such delivery of the cable on board as subjected it
to any claim of the libelant.
J. A. Hyland, for libelant.
Scudder de Carter and Geo. A. Black, for respondents.
Bbown, J. It is claimed that no lien could attach under the char-
ter in this case, because the provision that the freight was not to be
due until the vessel had performed her contract, that is, until the
cable had been laid in the Erie canal, shows that no lien on the
cable was contemplated, and that none could bave been enforced by
action if the freight or hire of the barge had not been paid according
to contract as soon as the cable had been laid. It is undoubtedly
true that where the express stipulations as to payment of freight are
incompatible with a claim upon the cargo, the lien will be deemed
waived. Buggles v.Bucknor, 1 Paine, 363 ; Raymond v. Tyson, 17 How.
63, 61. But in this case payment was due upon performance as in
the ordinary cases of the transportation of goods on freight ; nor do
I perceive anything in the fact that the cable was laid in the canal
incompatible with the right of the libelant imœediately to procefed to
libel the cable, as it lay, by a suit in rem, and to attach and seize it
through the marshal, as in other cases, if the charterer had failed to
pay the contract price upon the delivery being complète. I under-
stand, the law, as generally administered, to be that the lien of
the vessel upon the goods, and of the goods upon the vessel, at-
taches from the moment the goods are laden on board, and not from
the time only when the ship breaks ground. The Bird of Paradise,
5 Wall. 545, 562, 663 ; Bulkley v. Naumkeag, etc.. Go. 24 How. 386,
393; The Yankee Blade, 19 How, 82; 1 Pars. Shipp. & Adm. 174,
and notes; The Hermitage, A Blalichf. 474; The Eddy, 5 Wall. 481,
494. This objection, therefore, eannot be sustained,
The situation of the barge, with 16 miles of cable on board, but
made fast at the shore end upon the manufacturer's promises, is
doubtless a peculiar one. The manufacturing company did not in-
BL0WEB3 V. ONB WlfiS BOPS OABIiB. 4é7
tend to make a complète delivery in favor of the dable'company, ex-
cept on receipt of the cash payment agreed on, ànd it is claimed that
they wére, thèrefore, in possession of the cable while it was on the
barge through the control they exercised over it by holding fast to the
shore end. The manufacturera, however, are clearly chargeable with
notice of the relations of the libelant to thecable Company. Ih load-
ing the cable on board they could not hâve supposed that the barge
belonged to the cable company. They knew that it came under some
contract with the libelant, by which he was to hâve pay for the use
of it, for they agreed to pay one-half of the expenses of the vessel
while she was receiving the wire, and they subsequently made a pay-
ment onthis account. ' So far as the libelant was concerned, thère-
fore, theymust be held to be chargeable with knbwledge of the con-
tract between him and the cable company, and that in the ordinary
course of business the libelant would bave a lien for the hire of thg-
boat upon ail cable put aboard. They must be held, thèrefore, to
hâve laden the cable on board the libelant's boat pursuant to his con-
tract with the cable company. The libelant, in receiving it on board,
reeeived it in exécution of his contract with the cable company, and
the manufacturera in puttingit aboard didso on account of thecable
company, at least so far as respects the libelant's rights. The libel-
ant had no knowledge of the terms of the contract between the two
companies, and there were no eircumstances putting him upon in-
quiry. He had no right to refuse to reçoive the wire on board when
tendered by the manufacturers ; on the contrary, he was bound tb
receive the cable on board, preciselyashedid accept it; and in thus
aecepting it and permitting it to be laden on board, he reeeived it ev-
idently under, and in part exécution of; the contract of affreightmeni ;
ànd the manufacturers are clearly ohirgeabié with notice of thèse
fàcts. . It is clear, thèrefore, as it seems to me, that the libelant coulct
not be bound to receive the wire on board under his contract withôut
at the same time acquiring that lieri on -the cable which by the mari-
time law attaches to goods from the moment they are laden on board.
Had the manufacturers desired to put the cable on board under Buch
qualifications and restrictions as would preveût the ordinary lien of
the vessel from attaohing, they were bound to give the libelant express
notice of this intention and condition on loading; and the libelant
might in that case bave lawfuUy refused to receive the cable on board
under such qualifications. As the manufacturers did not do this they
must be held, as respects the libelant, to be estopped from denying
that they loaded the goods on board the barge as the goods of the ca-
ble companyi and to bave voluntarily subjected the cable to the lien
of the vessel thereon, without regard to their own private relations to
the dable company as respects their right to payment on delivery.
Faith v.East Ind: Go. 4 Bam. & Aid. 630. The same prineiple of
estoppel as iegards the lien of material-men upon vessels or their
equipmeijt, without regard to the actual title, bats been applied in the
448 FEDEBAL BEPOBTEB.
case of The May Queen, 1 Spr. 588 ; The St. Jago de Cuba, 9 Wheat.
409, 418 ; and The Sarah Starr, 1 Spr. 453.
As respects the cable company, it is manifest that the delivery of
cûe cable was not complète, and was not inteuded by the manufae-
turers to be complète, until they should obtain the cash payment
agreed upon; but-this, so far as the libelant was concerned, was a
secret arrangement between the two companies, of which the libelant
had no knowledge ; and the intention of the manufacturers to hold on
tu the shore end of the cable, instead of cutting it loose, when the
whole amount was put on board, was in no way communicated to the
libelant until the cable had ail been loaded. The manufacturers be-
ing then linable to obtain their pay, refused to eut the shore end of
the cable so as to allow the vessel to départ and perform her contract,
and in their endeavor by subséquent negotiations with the cable com-
pany and the receiver to procure their pay, they kept the vessel in that
condition, and would neither remove the cable nor suffer it to départ.
The manufacturers, it is true, were not, as respects the cable com-
pany, bound to deliver the cable or suffer the vessel to départ with-
oùt being paid according to their contract. The cable company in
omitting to pay for the cable as their contract provided, so as to per-
mit the departure of the. vessel, in effect obstructed and prevented
the f arther performance by the vessel of her contract after the cable
had been taken aboard, thoagh the vessel was ready to proceed and
complète her contract. The vessel is entitled, therefore, to compen-
sation according to the contract priée prior to reaching West Troy.
The manufacturers hâve no equity to contest this, for the reason that,
having put the wire on board with substantial knowledge or notice of
the libelant's rights, they could not afterwards, upon failure to get
their pay as expeoted, rightfuUy keep the vessel tied to the wharf
for their own benefit, in the hope of speedy payment for the cable
put on board.
By the charter the libelant was to hâve five dollars a day for the
vessel until she arrived at Troy. - She has been prevented from the
fuU performance of her contract, after having taken the cable aboard,
through the default of the charterer ; and, by this default, with the con-
current acts of the claimants, the vessel was detained until the cable
was removed from on board, under the bond given by the claimants
on Augnst 23, 1881, after this libel was filed, in ail 343 days, mak-
ing $1,716. The increased priée of the barge after reaching the Erie
canal ispresumablyonaccountof the increased expense subsequently
attacbing. The time during which she was detained at the wharf
was far more than suflScient for the layingof the cable, so that full
compensation for her contract will be given by an allowance of the
stipulated priée of five dollars per day for the time during which she
had the cable on board, amounting to $1,715, from which, deducting
$240.50 already paid, a balance remains due of $1,474.50. Where
a lien on the cargo for freight exists, it extends also as against the
IHE EOOKAWAÎ. 449
freighter, by the maritime law, though otherwise at eommon law, to
demurrage and damages for the unreasonable détention of the vessel,
though not expressly agreed upon. The Hermitage, 4 Blatohf. 474 ;
The Hyperion's Cargo, 2 Low. 93 ; Sprague v. West, Abb. A.dm. 648.
But in the présent case, compensation for the vessel, while lying at the
wharf with the cable on board, is not in the nature of damage for dé-
tention, but is a part of the express contract of the charter to pay
for the vessel at the rate of five dollars per day until arrivai at Troy.
The libelant is thersfore entitled to a decree for $1,474.50, with
interest from August 23, 1881, with costs.
The Rockaway, etc.
Thb BuBvrvoB, etc.
(DiHtrfet Court, 8. D. Hm York. January 15, 1884
1, COLLISIOIî— A.NCHOBED VBSSEIi — PUESUMPTION.
Where a steamer in motion collidea with a vessel properly anchored, thepre-
sumption of fault is upon tlie former.
2, Same— BiNGiNG Bell— Snow,
There being no positive rule nor settled usage for a vessel at anchor to ring
a bell in tliick snow, hcld, such vessel is not in fault for not ringing a bell dur-
ing a thick squall of snow of a few minutes' duratiou only.
3, Same — Case Stated.
Wliere the ferry-boat R., running from Hunter's Point to Seventh street,
New York, her usual course being near where the bark 8. was anchored olï
Nineteentli street, was overtaken after leaving Hunter's Point by a sudden
squall of thick snow, and on passing Twenty-third street was erabarrassed by
one of tlie ferry-boats of the Twenty-third street Une Crossing her bows, com-
pelling lier to stop and back, and while so doing, and being headed well to-
wards the New York shore, she drifted down with a strong tide and ran afoul
of Ithe S. at anchor, the position of the latter being previously well known to
theR., held, that the ferry- boat was in fault for not keepinç further away from
the known situation of the 8.: Tield nUo, that under the circumstances it was
not probable that the ringing of a bell would bave been of any service to the R.
in avoiding the collision, aud that the li. accordingly was alone answerable.
In Admiralty.
Shipman, Barlow, Larocque & Choate, for ferry company.
Jas. K. mil, Wing é Shoudi/,'îoï the Survivor.
Beown, J. Thèse cross-libels were filed to recover damages arising
ont of a collision, which took place in the East river, off Eighteenth
street, a little after 7 o'clock in the evening of Sunday, December 26,
1880, between the brigantine Survivor and the ferry-boat Eockaway.
The brig was a new vessel of 193 tons register, belonging at Windsor,
Nova Scotia. She arrived at New York, loaded with potatoes, on the
afternoon previous, by way of Long Island sound and the East river,
and, after being taken through Hell Grate by the pilot in charge, was
v.l9,no.6— 29
450 FEOEBAL BBPOBTBB.
kît by him on the uBual amohorage ground, known asthe Poor House
fiats off Nineteenth street, about .450 yards from the New York shore.
The brig Louisa Coipel was anchored just above and a little nearer
thé shore. The place of anchorage was at first disputed, but is fixed
■with' approximate accaracy by the pilot who anchored the Louisa
Goipei, who states that she was anchored when he got in range of the
weB;t ship-houae, at the navy-yard, as it opened along the Une of the
New York shore. This fixes the position of the brigantine at about
450 yatds from the New York shore.
On Sunday, the day of the collision, the wind was strong from. the.
north-east, with occasional spits of snow. At about 5 p.m. both ves-
sels threw out a second anchor, apprehending a stormy night, and
paid out 20 additional fathoms of chain. This would hâve brought
the brigantine between Eighteenth and Nineteenth streets. The Eock-
away, with lier companion-boat, the .Long Beach, was running from
the ferry at the foot of Seventh street, New York, to Hunter's Point.
Off Tenth street there is aj.reef of rocks near the middle of the river.
The usual course of the ferry-boats is to run between this reef and
the New York shore until ofi Seventeenth street, and then make some-
what across the river for Hunter's Point. When the weather is thick
the beats go near the docks as far as Seventeenth street and then
steer by compass acrosS for Hunter's Point, and return in the same
manner. At Seventeenth street the New York shore makes a suddeu
and deep bend to the westward, f orming a sort of bay with the flats
above referred to. The harbor régulations forbid vessels to anchor
within 300 yards of the shore. While the Survivor was thus at an-
chor, the tide being strong ebb, the Kockaway, on one of her trips
down the river from Hunter's Point, ran afoul of the brigantine, caus-
ing damage to both vessèls. The ferry-boat at thô time was headed
more or less for the New York shore; was under slow headway through
the water, and drifting down with the strong ebb-tide. As she did
80, the jib-boom of the Survivor ran through the second window from
the front of the forward cabin of the. Eockaway, on her port-side, and
that side of the ferry-boat was carried away as far back as the wheel-
house. The boats beoame entangled; the Eockaway swung round
with her head up river and upon the east or star board- side of the
Survivor, and was f ast afoul from half an hour to an, hour, when she
was finally extricated through the aid of the Long Beach, which was
approaching and very near at the time of the collision.
The witnesses on behalf of the ferry-boat testify that when the
Eockaway left her slip at Hunter's Point thelights at Thirtieth street
could be seen, but that a few moments af terwards, when she got out
into the river, a thick squall of snow set in, which hid the lights on
both ahores, as well as the lights of the vessels at anchor, so that no
light could be seen eicept at a very short distance; and that this
snow squall and this condition of the weather continued until the
collision. The pilot testifies that as he approached the crossing of
THE ROCKAWAT. ^ 451
the Twenty-third Street ferry frbm Ne'w York to Greenpoint, he blew
signal whistles for this ferry, aud received in reply two whistles from'
the ferry-boat Martha, of that line, which be recognized, indicating
that she would cross his bow ; that he iramediately reversed his en-
gine; that the Martha paseed his bow very near to him; that he
could only see her white light when she was close to him; that after
she had pasàèd, and while he was still drifting and backing, he ran
afoul of the Survivor in the manner before deseribed, not being able
to see her anchor light, which was set in her fore-stay, until close
upon her. Thiô testimony in regard to the state of thé weather is
substautiated by three other pilots, namely, the pilot of thé' Long
Beach, and the pilots of the Martha and Greenpoint, of the Twenty-
third Street Une. They ail testify that on this trip lights could not
be seen any considérable distance, so as to be of service in Sivoiding
vessels, and that they sounded their fog-whistle, as customary in
thiek weather. The witnesses on behalf of the Survivor, including
éome who were disinterested, state in gênerai terms that the weather
was not thick; that there was no snow toobstruct lights; that the
lights on both shores were visible, and the lights of vessels visible at
a good distance off. Such a conflict of évidence in regard to the
weather is extremely embarrassing. But, upon a careful considéra-
tion of the testimony, and notwithstanding the able argument of
counsel on the part of the company, I am not satisfied that the ferry-
boat bas absolved herself from the sole responsibility for this collià-
ion.
1. The brig was at anchor in a proper place, where she had aright
to be, and with her light properly set. The pilot of the ferry-boat
knew her précise position, and was bound to keep ont of her way.
The burden of proof in such cases is upon the vessel under way to
show by a clear prépondérance of proof that the collision occurred
without fault on her part, or through some fault of the other vessel.
The Batavier, 2 Wm. Eob. 40T; The John Adams, 1 Cliff. 404, 413 ; The
City ofNew York, S Blatcht. 194:.
2. Even if the weather were as thick as the witnesses on the part
ôf the Eockaway state, the latter must, nevertheless, be held in fault,
because her pilot well knew where the Survivor' lay at anchor, and wàs
bound to give her a good offing, there being nothing iii the way of
his doing so. Moreover, a statute of this stàte requires steam-boats
navigating theEast river to keep in the middle of it ; and this statute
was held by Nelson, J., in the case of TheE. C. Scranton, 3 Blatebf.
50, to be bindîng upon the Williamsburgh ferry-boats. The Eock-
away in deviatiïig from this rule did so at herown péril. The course
of the Eockaway on this trip, by compass, as stated by the pilot, shows
that no effort was made to keep in the middle of the river or to go
much to the eastward of the Survivor. As respects her duty to keep
away, the case is very similar to the case of The D. S, Gregory, 6
Blatchf , 528, in which Nelson, J,, says :
452 FEDEBAIi BEPOBTEB.
"It Vf as the duty of the D. S. Gregory [in a thick fog] to take every reason-
able précaution in her power to avoid the Talisman. In this, I think, she
failed, Sheknew that the Talisman was anchored in hertrack the afternoon
or evening before; and, as the Talisman did not change her position down
to the time of the coH'sion, and the ferry-boat was paasing her every trip she
was making, the ferry-boat is chargeable with notice of her position, and
should hâve been so navigated as to avoid her."
That case presented more difiSculties from the surrounding shipping
than the. présent, and, nevertheless, the ferry-boat alone was held
liable.
3. It is urged that the Survivor was in fault in not ringing a bail
when the weather was so thick with snow that lights could not be
seen. There was not then, and is not now, any express rule or régu-
lation in force in this country requiring a vessel at anchor to ring a
bell in snowy weather. The rule provides for cases of fog only. The
new international raies of navigation provide for snow as in cases of
fog; but thèse rules hâve not yet been adopted by congress. There
was no proof of any usage or custom of the port for vessels at anchor
to ring a bell in snowy weather. See The Bay State, 1 Abb. Adm.
235, 241. note.
Withoat eonsidering what may be the obligations of a vessel in this
respect when anchored in the région where ferry-boats are in the known
habit of passing, I hâve come to the conclusion that under the pecu-
liar circumstances of this case there is not snch satisfactory évidence
or prépondérance of proof on the part of the ferry-boat in regard to
the condition of the weather for such a length of time as would justify
me in holding the Survivor chargeable with négligence in not ringing
a bell. The case is not one of the omission of a reasonable précau-
tion to avoid the danger of a particular collision after that danger
has become visible, The fault charged is that the Survivor did not
commence to ring a bell when the weather, as is alleged, became
thick, as a gênerai measure of précaution, to enable ferry-boats and
any other vessels to keep away from her. But the time during which
this thick snow could hâve existed was extremely short; certainlynot
more than five or six minutes. No bells were rung anywhere else,
either upon other vessels, or upon the ferry slips, which are in the
habit of using bells in thick weather to guide boats coming in, Some
suspicion necessarily attaches also to the claim that so thick weather
should come on so suddenly, continue until the collision, and disap-
pear a minute or two afterwards; and the proof to sustain it ought
to be clear and satisfactory. Although four pilots of ferry-boats do
testify to this, there are numerous circumstances in connection with
the other direct évidence, which, contrary to my first impressions,
hâve led me to hesitate, and at length to conclude, after much review,
that the weather was not so thick for any such appréciable time as
could constitute négligence in the brig for not ringing a bell. There
must be some reasonable period allowed for observation, directions,
and the exécution of orders for such signais. A vessel at anchor, and
THE ECHO. 45S
in a proper place, is not, I think, to be eharged with extrême vigilance
or watchfulness against collision with other vessels, nor held to be
always prepared for the instantaneous sounding of a bell. Less vig-
ilance is required of a vessel at anchor, The Lady Franklin, 2 Low.
220. The gênerai absence of such ringing of bellsas would belooked
for if the weather was very thick is entitled to considérable weight,
I think, as évidence that whatever thickness of weather existed was
for 80 brief a period as not to hâve given occasion for bells to be rang, ,
in the exercise of ordinary prudence. In the several years that hâve
elapsed since the collision it is not impossible, also, that the thickness
of the weather may hâve become somewhat exaggerated in the recol-
lection of the witnesses on the part of the "terry-boat ; and some im-
portant différences in their testimony and other circumstances of
proved mistake hâve on the whole satisfied me that, as the main 'ault
was very clearly on the part of the ferry-boat, there is not sufSciently
eatisfactory évidence of négligence to make the Survivor also legally
responsible for the collision. If, moreover, the weather was as thick
as alleged, it is not évident, and scarcely appears probable, that, con-
sidering the heading, the backing, and the drifting of the Eockaway
after the embarrassment caused her by the Martha's orossing her bows,
she -would hâve received aid from a bell if rung from the Survivor.
Her pilot had not lost his bearings; he knew the position of the Sur-
vivor and Louisa Coipel, and must hâve known his own position very
approximately from the Martha's course. He does not ôlaim to hâve
been misled by the absence of the bell, and I doubt that the bell, if
rung, would hâve made any différence in the resuit. McCready v.
Goldsmith, 18 How. 89, 92.
In the case of Slocomb a référence may be taken to compute the
damages to the Survivor, if the parties do not agreô, and the eross-libel
must be dismissed, with costs.
The Eoho, etc.
(District Court, 8. D. Nevt 7(yrk. January 21, 1884.
COLLiaiON — KBaLIGBNCE— BUHDEN OP PkOOP— CUBTOM.
Where a boat properly moored receives damage from another collidlng with
her, the latter is presumptively liable for the damages, and the burden ai proof
is upon her to clear herself from fault,
SaMB— LiNB ACBOSS CHANNEI,.
The teraporary use of a line or warp stretched across a narrow stream in the
mooring and handling of vessels Is not necessarily unlawful.
Samb— OnsTOM.
Where a tug-boat coming down Newto wn creek discovered such a Une ahead
of her, and upon backing to avoid it, ran into the Hbelant's boat, held, tliat the
burden of proof was upon the tug-boat to show that the Une was used improp-
erly, or that any proper signais vvere omltted; held, also, that in view of tlic
454 FEDERAL BEPOBTEB.
local usa^o the tug-boat should hâve been more cautlousin her approach, and
kept further away from the libelant's boat, and was therefore chargeable with
the damage.
Collision.
Beebe, Wilcox de Hobbs, ter libelant.
Edwin G. Davis, for claimant.
Ekown, J. On December 21, 1880, the libelant's canal-boat Van
Vleet, laden with coal, was lying at the Long Island railroad dock, in
NewtowQ ereek, a short distance above the bridge, moored outside of
two other canal-boats. At dusk, about 5 p. m. of that day, the weather
being clear, the steam-tug Echo was coming down the creek on a
course which would carry"her about 25 feet outside of the Van Vleet.
When she had corne within about 30 feet of the stern of the Van Vleet
her pilot saw a Une stretched aeross the creek a short distance below
the canal-boat, running from a schooner on one side to the opposite
shore, and ranging about 10 or 12 feet above th« water. The pilot
immediately stdpped and reversed his propeller to avoid running into
the Une. In doiug so, the Echo not being entirely manageable in
backing, swung her bows towards the canal boat a,nd inflicted a blow,
causing some damage, for which this libel was filed. The owner of
the Echo subsequently agreed to pay for certain repairs, but the terma
of the agreement being afterwards a subject of dispute, no settlement
was effected,
The canal-boat being moored at a proper place, and no fault charge-
able against her, she is presumptively entitled to the damages inflicted
by another boat colliding with her. New York, etc., v. Rumball, 21
How. 385; The Brldgeport, 7 Blatchf. 361; Pierce v. Lang, 1 Low.
65; The Lincoln, Id. 46; The John Adams, 1 Cliff. 404, 413; The
City of New York,' S Blatchf. 194,; The Rockatvay, ante, 449. On
the part of the Echo, it is urged that she ought not to be held lia-
ble, on the ground that the stretching of a Une acroas the creek, a
thoroughfare for vessels, was the real wrong which caused the collis-
ion; that there was no previous notice given of the existence of the
line, available to the Echo; that it was seen as soon as it could be
perceived; and that there was no subséquent fault in the handiing of
the tug. If the évidence sustained this view a différent question
might be presented ; but it is a familiar fact, and it was proved on
the trial, that the use of Unes stretched aeross the creek was a usual
and eustomary thing for the purpoae of handUng and moving vessels
of a considérable size which go above the bridge, and that the tempo-
rary use of such Unes is necessary for that purpose, in that narrow
channel-way. 1 Pars. Shipp. & Adm. 547. It cannot be assumed,
therefore, that this line was wrongfully aeross the stream at the mo-
ment when the pilot of the Echo discovered it, and no évidence was
given showing the omission of any eustomary signais. Tiie burden
of proof to show that the Une was wrongfully there wag upon the
Echo. Nôthing was proved, however, beyoud the bare fact of the
THB.-SWAK, 455
line being there, and, under the cuatom proved, that is not presump-
tively unlawf ul. The custom of stretching Unes aeross the atream for
this purpose imposes the duty upon tugs navigating that part of the
creek to observe carefullj, and to regulate their speed and distance
from other craft with référence to such a contingency. There was
plenty of room for the tug to hâve gone further from the canal-boat.
The pilot of the Echo had not been accustomed. to navigate in New
town ereek, and the accident in question, doubtless, arose from his
want of familiarity with the usage of stretching lines aeross the
creek. This does not exempt the Echo from responsibility, and the
défense in this respect cannot be Bustained. Nor upon the évidence
of the pilot himself can I sustain the claim that the blow was a light
one, or such only as may rightfully oecur in the ordinary rubbing of
boats passing along-side each other. The Chas. R.Stolw,' 9 Ben.
182. It was plainly a considérable blow, and did notarise in the
course of the ordinary, usual, and-prudent handling of such boats.
I see no reason in this case to doubt the fairness of<the bill pre-
sented for the repairs, détention, and expenses of the veséel. Thèse
are proved to amount to $97, which, with interest to this date, makes
$115, for which the libelant is entitled to a decree, withcostB.
ThË SWAN.
(District Court, S. D. New York. February 1, 1884.)
1. Sheppinq — Obstruction to Navigation— Eopb across Channel— Damaqb —
Proximatb Cause. ■
Arope stretched across thearchwayof a bridge and over the principal chan-
hel of a navigable river, and remaining 24 hours, is an unlawf al obstruction of
navigation.
2. BAMB— WhBN JUSTIFIABtE.
Wherever such rope or warp maj- be nsed, it is justifiable only for a tempo-
rary purpose, those who use it malsin|; provision for loosening it to allow vessels
to pass, and giving timely notice of its existence.
8. Samb— Case Statbd.
Where a rope was stretched across the west archway of High bridge, for the
purpose of keeping a canal-boat a few feet distant from the abutment of the
bridge where there were sunken spiles, and the boat might hâve been breasted
ofl equally well by the use of ^lanks upon the wharf, and tTie passenger
steamer S., after landing within 150 feet of the abutment, prooeeded with the
flood-tide through the main channel, no notice being given of the rope whioh
was under the water in the middle, and visible only where the ends came from
beneath the surface, and those on the boat being unable to loosen it at once,
and in the strong tide it being dangërous for the 8. to remaiu in contact with
the rope, held, that the use of the Une ,in this case was unnecessary and was
an unlawful obstniction ; that the cutting of the rope by those on the steamer
waslawful; and that the steamer was npt liablè for any damage subsequently
sustained by the canal-boat. ffeld, alao, upon the facts, that the damage to
the canal-boat from settling ùpon the spiles arose after a considérable interval,
during which the boat might bave been breasted off from the spiles; that the
cutting of the line was not the proximate cause of the injury; and that on thèse
grounds also the libel should be dismissed.
456 FEDEBàL BEFOBIEIt.
. This action was brought to recover damages for injuries to the
canal-boat C. B. Simon, on the iifteenth day of July, 1881, on the
west side of the Harlem river, at High bridge, caused through a line
by which she was fastehed having been eut by those in charge of the
steam-launch Swan. The Simon had arrived at High bridge the day
previous, loaded with coal, and moored on the west side of the river,
along-side of the bulk-head which extends northerly from the west-
erly abutment along the shore, and which is on a line flush with the
inner side of the abutment. The canal-boat lay with her bows to the
northward and her stern projected part way through the western arch-
way of the bridge. Beneath the water and near the bottom were the
remains of a crib extending around the abutment two or three feet
from its base, the outer margin of which consists of spUes which had
been eut off a foot or two above the bottom. To prevent boats moored
along the bulk-head and the abutment from settling down upon thèse
spiles at low water, they were usually fended off so as to be outside
of the line of thèse sunken spiles. This was sometimes done by
moans of planking passing from the wharf to the boat, and sometimes
by a line run from the end of the boat at the abutment and stretched
across the western archway and fastened to a spike driven into the
second abutment of the bridge not far from the surface of the water
at high tide. The stern of the Simon was kept off by a line fastened
in the manner last deseribed. The Swan was a small steamer ply-
ing in the summer season between Harlem bridge and High bridge
for the carriage of passengers. Her usual landing place at High
bridge, upon the west side, was at a float, known as Eiley's float, upon
the western edge of the channel directly below, and about 150 feet
southerly from the western abutment of the bridge. Her usual land-
ing on the east shore was about the same distance above the bridge.
The principal channel is under the western arch of the bridge, which
is of about 70 feet span. The middle arch, though usually having
about six feet of water at low tide, was much less used for passage.
Around the second abutment there were loose stones extending some
distance to the southward which interfered somewhat with the ap-
proach to the middle arch, and rendered a cross-ways approach to it
dangerous; and under the eastern arch the water was too shoal for
navigation. The ordinary course of the Swan upon her trips, both in
going and coming, was through the western arch, not only by reason
of the deeper water there, but especially, also, because upon the fiood
tide, after landing at Eiley's float, the Swan could not in the short
space between that and the bridge get far enough out into the river
to make the middle passage without danger of running upon the
rocks by the second abutment, except at great inconvenience and by
spécial applianees which she did hâve aboard for first shoving her
bows or her stern out into the river. After making her landing at
Eiley's float, upon her first trip on the fifteenth of July, the Swan
proceeded in the manner usual at flood tide through the western arch-
THE SWAN. 457
way, and when close to it observed for the first time the lîne stretched
a cross it, whicb iç the middle was beneath the water and was visible
only where the two ends came out above the surface. Shouts were
given from the Swan to loosen the line, and some effort vas made by
the wife of the Ijbelant on board of the boat to unfasten it there, but
it was so secured that it could not be readily loosened, and the Swan
having run afoul of it, and the captain apprehending danger both to
the boat and passengers in the strong flood tide, after a few minutes
ordered it eut, which was done. The canal-boat afterwards got upon
the sunken spiles, which in the ebb tide made holes in her bottom,
causing the injury for which this libel was filed.
J. A. Hyland, for libelant.
Edwin O. Davis, lot claimant.
Brown, J. There can be no doubt that the archwayacross which
the line was stretohed was the principal channel for navigation in the
Harlem river, under High bridge. The landing at Eiley's float bas
been in use for many years. The course from that landing, through
the middle archway, upon a flood tide, would be attended by such
obvions inconvenience and dangers as cannot rightfully be imposed
upon persons entitled to navigate the river in the ordinary course of
navigation. The line stretched across the western archway was,
therefore, in my judgment, plainly an unreasonable obstruction to
the navigation of the river, which could only be lawfuUy put there
very temporarily, or at seasons when the channel was not in use for
ordinary navigation. While such Unes or warps may doubtless be
used temporarily for mooring and handling vessels in rivers or harbors,
they cannot be lawfully continued so as to form a permanent ob-
struction to navigation. Those who make use of them must be pre-
pared to give seasonable notice of them to approaching vessels to
avoid danger, and make seasonable provision for their passage.
In Potter v. Pettis, 2 E. I. 487, the court say:
"The plaintiffs had a right to extend their warp across the entire channel
of the river, if there were no vessels passing, but on the approach of another
vessel it was their duty to take notice of such approach, and to lower their
warp so as to give ample space in the ordinary traveled part of the channel
for her to pass, and to give timely notice of the space so left."
In McCord v. The Tiber, 6 Biss. 410, the court say:
"The respondent had no right to obstruct the channel with a une across it
in that manner. * * * If it was for the safety of the boat to make a
line fast to the shore, or to use a line attached to the shore as a necessary as-
sistance in getting off the bar, she should hâve taken care to get it out of the
way of ail passing vessels, either by dropping it, so that they could pass over
it safely, or by casting off one end. The obstruction not being removed so
as to let this raf t pass over or under it in safety, was manifestly illégal."
See 1 Pars. Adm. 547; The Vancouver, 2 Sawy. 381.
In this case no attempt was made to give seasonable notice to the
Swan of the existence of this line across the archway before she left
Riley's float, or afterwards, until she was close upon it. Such a
É58 FBDEÇ^L REPORTEE.
line was uot ôasily distinguishable, ftnd th6 pilot of the Swan is not,
80 far as I can see, chargeable with any négligence in not perceiving
it in time to avoid it. Those on the Simon could not loosen the line,
though requested to do so. The Swan could uot safely remain any
length of time in contact with the line, and the only alternative was to
eut it, as was done, wiiich, under suoh circumstances, as I must hold,
the captain bad a légal right to do. There was no actual necessity
for the use of this line by the Simon at ail. The boat might hâve
been breasted ofif by the use of planks, and that, as the laborer Dunn
stated, has been latterly the njOre usual method. The line had been
thus used by the Simon for 24 hours, f orming a plainly illégal ob-
struction of the channel.
While, therefore, upori the ground 'above stated, I shonld be con-
strained to hold that: any loss occasioned by the line's being eut was
through the libelant's own fault, and not through any légal fault in
the Swan, upon the other facts of the case, also, the weight of évi-
dence seems to show that the damage to the boat was not the proxi-
mate resuit ofcutting the Une. It was high water that day at Gov-
ernor's Island at about 10 minutes before 12, and it could not hâve
been high water at High bridge until between 2 and 3. The libel
states that the Une was eut at about 11 o'clock, and the libelant
80 testifiedi The answer does not state the hour, but says that the
flood tide was then about three-quarters fuU, which would place the
time between 11 and 12. Thèse statements in the pieadings, with
other direct évidence in accord with them, should be held oontroUing,
not with standing some contrary évidence which was given on tbe part
of the libelant. While the tide, therefore.was rising rapidly, it was
impossible that the injuries eomplained of could bavé arisen iramedi-
ately after the, Une was eut. The discharge of coal continued until
3 o'clock, and until nearly that time the tide was rising ; after that
it fell, and the settling of the boat upon the spiles with the falling
tide must hâve taken place at or after that time. During the interval
there was abundant time for the libelant to take ail necessary means
to shove bis boat off ïtnd out of the way of the sunken spiles. The
libelant hitasélf says the effort to gët the boat off was soon after the
Une was eut, — ^^from five to fifteen minutes afterwards. But the libel
is so fuU of grôss errors in its statement of facts as to detract miich
from the cfedit to be given to the libelant's case; and I cannot aceept
as true the 'statement of some of the libelant's witnesses, that when
the Une was/ijut the boat immediately got upon the spiles and could
not be retç^oved.
Oh both grounàs, itherefore, tbe libel should be dismissed, with
costs.- .
!THE OliUF. :. ,459
The OiiUF. *
'Circuit Court, E. B. Loumana. December, 1883.)
1. Chaeteb-Paiitt— Dkmueeaqb. ■
The woraa "providing for demnrrage for every day, day by day," in a
charter-party, are to be construed as running days, and not working days, and
ail daya are to be oounted, including rainy days, Sundays, and other holidays.
lÀndsayy.Ousimano, 12 Fbd. Rep. 503. 604, followed.
2. Bamb.
The words "weatherpermitting," in the charter-party in thîs case, apply to
the time to be tâken for unloading, and not to the tiine of thé détention of the
vessel by the default of consignées.
Admiralty Appeal.
E. H. Farrar, for libelaûtB,
W. S. Benedict, for respondents. ,
Pardee, J. Libel for démarrage under charter-party, contaîning
this clause on the subject :
"It is agreed that the lay days for loading and discharging shall be as fol-
lows, (if not sooner dispatched:) comroencing frora the time the vessel is
ready to receive or discharge cargo; cargo to be delivered to the vessel in
quantity of not less than 15,000 feet per day, and to discharge as fast as the
vessel can deliver to coinpany's lighters, weather perinitting.> And that for
each and every day's détention, by default of said party of the second
part, or agent, twenty-five dollars per day, day by day, shall be paid by said
party of the second part, or jigent, to the said party of the flrst part, or agent."
The évidence shows that the cargo could hâve been discharged in
10 working days had ordinary dispatch been used. And this was ex-
pjressly agreed to . by the agent of consignées. It is also shown and
agreed that the lay days commenced September 26th, and expired
October 27th, from which time the bark wàs detained by default of
the respondents. The only question remaining is whether, under the
contract, demurrage was to be paid for running days or only for work-
ing days. It seems to me that the contract is perfectly plain : -"And
that for each and every day's détention, * * * twenty-five dol-
lars per day, day by day, shall be paid." The vessel should hâve
been discharged October 37th. •
As this court had occasion to say in another case :
"AU delays after that date were the resuit of the négligence of the
respondent, and whether it « rained or shined,' was Sunday or week-
day, he should pay demurrage for every day thereafter, nntil the ship
was discharged." Lindsay v, Gusimano, 12 Fbd. Ebp. 504.
It seems that after the expiration of the lay days, and while de-
murrage was running, the storms were so violent at intervais that the
bark was compelled to go to sea for safety, and this no less than six
times; and one time the bark was kept outside some 10 days. It
iReported by Joseph P. Hornor, Esq., ofithe New Orléans bar.
460 FEDEKAL EEPORTEB.
does not appear that much of tbe time the bark was outside for Bafety
could or would hâve been utilized for discharging; but the respond-
entB urge that thèse days should, at least, be deducted from the delay
for which demurrage is'allowed. This claim, though plausible at first
glanée, cannot be allowed under the contract. The words "weather
permitting" apply to the time to be taken for unloading, and not to
the détention of the bark by the default of consignées. If the bark
had been discharged with dispatch when the stormy season came on,
she could bave sailed for smoother seas and safer ports. Therisks
and loBses she was compelled to meet to secure her safety will be
hardly compensated by the allowance she will get as demurrage dur-
ing that stormy season.
A decree will be entered in favor of libelant for $2,650, being de-
murrage for 106 days at $25 par day, with interest from December
24, 1881, with crédit of $550 deposit, with interest from November
24, 1882, and for costs of both courts.
The City of Lincoln.
{Oirouit Court, E. D. Louisiana. December, 1683.)
1. Appeal— Bond— Pawtibs.
"Where the appeal was taken and bond given before the decree below -was
made final by the signature of the judge, and where ail parties against whom
the decree below was rendered hâve not appealed nor severed, and where the
motion and order for appeal were not takea against any of the numerous libel-
ants by name, and where no bond was given in favor of any other than one of
the libelants, and the jud^nient below in his favor was only for $40, not
sufflcienî to give jurisdiction to this court, the appeal wiU be dismissed.
2. Samb — Ambndmbnt of Procbss.
On appeal from district to circuit court defective process cannot be cured bv
amendment.
On Motion to Dismiss Appeal in Admiralty.
Richard De Gray,ior libelants and appellees.
Emmet D. Craig, for claimants and appellants.
Pardee, J. The appeal bond in this case is irregular and defect-
ive, (1) because the appeal was taken and bond given before the de-
cree below was made final by the signature of the judge ; (2) because
ail parties against whom the decree below was rendered hâve not ap-
pealed, nor hâve they severed; (3) because the motion and order for
appeal were not taken against any of the numerous libelants by
name; (4) bacause no bond waa- given in favor of any other libelant
and appellee than Daniel Kelly, and the judgment below in his fa-
vor wae only $40, not au amount sufficient to give appellate juriedic-
tion.
1 Rcported by Joseph P. Hornor, Bsq., of the New Orléans bar.
CHB OITY OB' BATON BODGB. 461
It may be said that the first three grounds are not sufficient to en-
able the court to say that there is no appeal, There may be no rule
of the district court (although the custom is invariable) requiring de-
crees to be signed by the judge; but see Betts, Adm. 98. The
steam-sbip company may be the only real party interested in the de-
cree below, to be determined by examining the record. No motion
for appeal may be necessary where notice is given and a proper bond
given.
The fourth and last ground, however, is too serions to be explained
away. I take it that the bond in the case is the real and only ap-
peal process whicb in this case, at least, brings the case to this court.
The decree below was in favor of some 20 odd libelants by names.for
varions sums. The appeal bond is in favor of Daniel Kelly and in-
tervening libelants, without naming any one. The rule is well settled
that such appeal process is détective. It must name aU the persons
whicb the appeal is intended to bring before the court; otherwise
there can be no decree for or against them. See Smith v. Clark, 12
How. 21; Deneale v. Stump 8 Pet. 526; Holliday v. Batson, 4 How.
6é5.
Suggestion has been made that the court can grant leave for ap-
pellant to amend, but I do not know of any authority for the court to
make such order where the effect would be to bring new parties be-
fore the court. There is no suflScient bond in this case to bring the
parties hère for the court to act upon them for any purpose.
The appeal will be dismissed.
The (Jity op Bâton Bouge.'
( Oireuit Court, B. B, Louisiana. December, 1883.)
J0RI6DÏCTION— AdMIRALTT.
An unexecuted contract of affreightment gives no lien in admiraltv.
The Pacific, 1 Blatchf. 569, distinguished
Admiralty Appeal.
Henry C. MÛler and Walter S. Finney, for libelant.
Charles B. Singleton and Richard H. Browne, for claimanta.
Paedeb, J. Libel in rem to recover damages for the breach of a
contract made between libelant and the master of the steam-boat
City of Bâton Rouge, to convey certain molasses from libelant's
plantation, in the parish of Iberville.to 8t. Louis, "it being agreed that
said molasses would be taken on board for conveyance to St. Louis
on or about January 25, 1883, the said steam-boat being on her down
1 Reported by Joseph P. Hornor, Esq. , of the Kew Orléans bar.
é62 FEDEIBÀL BBPOBTEB.
trip irom St. Louis wheu sftid contraot was made, and it being in-
tended by said contract that said molasses would be taken on board
said steam-boat on her return andup trip to St. Louis." The breaoh
alleged is "but neither on said appointed day nor at any time did
the said master oall for, take on board, or convey said molasses as
he bad agreed to, but in ail respects he failed to keep and carry into
effect said contract." The case bas been heard on an exception to
the jurisdiction, and the question is whether an unexecuted contract
of affxeightment gives a lien. This question is well settled in the
négative. The Freeman v. Buckingliam, 18 How. 188; Vandewatery.
Mills, 19 How. 82; and ses The Lady Franklin, 8 Wall. 329 j The
Keokuk, 9 Wall. 517; The Prince Leopold, 9 Fed. Eep. 333.
The learned prootor who brings the libel in this case relies entirely,
to maintain the jurisdiction, on The Pacific, 1 Blatchf. 569. In re-
gard to that pase, it should be noticed that the maritime contract for
passage had been so far entered uppn that the passage money had
been paid, and one demand of the libel was for the return of the
money. It is yery probable that in just sucha case jurisdiction
■would be maintained now. In our case no freight bas been paid, no
goods delivered, nor the maritime contract in any sensé entered upon
by the ship. The whole case is that the master contracted for the
ship that on the return trip the isolasses should be shipped. There
is no case that I am .ttware of that gives a maritime lien for entire
breaeh of such a contract.
The exception will be maintained, and the libel dismissed, witk
costs in both courts.
THE IMOGBNE M. TBSRT. 463
The Imogene M. TerbT;.
(Diatriet Court, D. New Jersey. February 2, 1884)
1. Admibalty— Maritime Lien— Captais op VBssBii,
The rule of law that the captain of & vessel has no lien upon It for his 'vrages
is not applicable to a person who, though calling himself captain, neither con-
tracts directly with the owners, nor has charge of fïeights and moneys, butis,
exoept in name, au ordinary seaman.
2. Same— Pleadings— Amendmbnts.
It is in the discrétion of a court of admiralty to a'ilow amendments in thé
pleadings even with respect to mattois of substance, by a party who- shows
merits.
In Admiralty. Libel in rem.
Bedle, Muirheid de McOee, for libelants.
E. A. Ransom, for respondent.
NrxoN, J. In the above libel the libelaot, with some self-compla-
cency, describes himself as master of the ftloop Imogene M. Terry.
But courts of admiralty deal with things, and not with words. If the
proofs show that he is in fact an ordinary seaman, under the con-
trol of the master, his calling himself the captain oughtnot tohinder
him from invoking the seaman's remedy for the collection of his wages.
It is well settled in the admiralty that the captain has no libel ivii rem
upon the vessel for his wages. The Orléans v. Phcebiis, 11 Pet, 175.
Two reasons are ordinarily assigned for thia : (1) Beeause the freights
of the ship pass through his hands, on which he has a lien fpr pay-
ment; (2) beeause his contraot for hire is with the owners, andhe is
Bupposed to bargain with référence to theijr personal responsibility,
and not with an intention to look elsewhere for satisfaction. The
Grand Turk, 1 Paine, T3. The évidence shows that both thèse rea-
sons failed in the présent case. Cessante ratione legis, cessât ipsa lex.
The libelant was not hired by the owners, but by the master of the
Frank C. Barker. He earned no freights, and no money passed through
his hands from the earnings of the vessel. When the crew of the
Barker was made up by Capt. Eaynor, he was employed with other
fishermen, and at the same rate of compensation, to-wit, $25 per
month, and three cents for every thousand fish caught. To carry on
the fishing opérations, some of the men were placed on board the Bar-
ker to aid in taking the fish, and others on two tenders, by which the
fish were transported from the vessel to the respondent's manufaotory
on the shore. The libelant had charge of the tender Imogene M. Terry,
but was as much subject to the orders and the control of Capt. Eay-
nor as if he had remained on board the Barker. The same attempt
was made to charge him with the cost of his grub, over three dollars
per week, that was sought to be imposed on the other men. There
was also a refusai to pay anything to him on aecount of the bonus
for fish caught, although the fact that Capt. Eaynor went with a num-
é64 FEDEBAL BEPORTEE.
ber of the crew to the owners on July Ist to receive payment on ac-
count of the dues for fish then taken, and the additional fact that he
suggested that the number shoald be estimated, for convenience, at
500,000, show quite clearly that he did not understand when the men
were hired that they would be expected to wait until the end of the
season before any payment on acoount should be made.
The proctor of the libelant, at the hearing, asked leave to amend
the libel, in order to hâve the allégations harmonize with the proofs.
In admiralty practice there is not much limit to the discrétion of the
court in this respect. In section 483 of Benedict's American Admi-
ralty, it is said that "on proper cause shown omissions and deficien-
cies in pleadings may be supplied, and errors and mistakes in prac-
tice, in matters of substance as well as in form, may be corrected at
any stage of the proceedings, for the furtherance of justice. Where
merits clearly appear on the records, it is the settled practice in ad-
miralty not to dismiss the libel, but to allow the party to assert his
rights in a new allégation. The whole subject rests entirely with the
discrétion of the court, as well in relation to the relief to be granted
as to the terms on which it shall be granted. Amendments may be
made on application to the court at any time, as well after as before
decree, and at any time before the final decree new counts or arti-
cles may be added, and new and supplemental allégations may be
filed."
The libel may be amended as proposed, and a decree entered in
favor of the libelant. If necessary, a référence will be ordered to as-
certain the amount of monthly wages and bonus due to the libelant
to the date of the order given by the captain upon the owners for the
payment of the sum due.
FOLLOE V. liOOCHHEIH. 165
PoLLOK and others v. Louchheim and others.
{Oireuit Court, N. D. Illinois. November 21, 1883.)
JuKisDrcTioN OF Circuit Court — Right op Rbmovai< — Sbpabatb Controvkrsy.
One of several attaching creditors joined the others as défendants in a suit
to set aside certain judgments obtained against the debtor by confession. H^d,
that they were necessary parties to the controyersy between the plaintiS and
his debtor ; and that, as they were citizens of the saine state with the debtor,
the cause could not be removed to the United States court.
In Equity.
Flower, Remy a; (j-regory, tor complamants.
Mr. Shehan and L. Schissler, for défendants.
Deummond, J. On the twenty-seveath day of September last Louch-
heim was a merchant, engaged in business in Galena, in this state,
and about that time three several judgments were rendered by con-
fession in the circuit court of Jo Daviess county against him, in favor
of différent parties, amounting altogether to a little more than $15,-
000, upon which exécutions issued and were levied by the sheriff
upon a stock ofgoods in his possession. Shortly af ter this had taken
place various creditors of Louchheim, including thèse plaintiffs, sued
out attachments from the same court, which were also levied upon
the same property by the sheriff, and thereupon the plaintiffs filed a
bill in the same court against Louchheim, the sheriff, and the various
creditors who had sued out the attachments. The bill alleged an in-
debtedness to them on the part of Louchheim, for which their attach-
ment had issued, and declared that the judgments confessed by
Louchheim were in whole or in part fraudulent as against the plain-
tiffs, and asked that a receiver should be appointed and the property
sold, and the proceeds distributed in accordance with the equities of
the parties. The plaintiffs in the bill were and are citizens of Wis-
consin, the défendants are ail «tizens of Illinois except two, who are
alleged to be citizens of New York. The bill was filed on the six-
teenth of October, and an injunction issued in conformity with a
prayer to that effect contained in the bill. On the twenty-fifth of
October last the plaintiffs made application, under the act of 1875,
for the reinoval of the case from the circuit court of Jo Daviess county
to this court, which application, it is admitted, was refused by the
court, and the plaintiffs now ask leave of this court to file a transcript
and doeket the case, on the ground that it was properly removable
from the state court.
The principal objection made to this application is that the at-
taching creditors, who bave been made défendants, are only nominal
défendants, but are really plaintiffs, when they corne to be arranged
according to the principle laid down by the suprême court in The Re-
nwval Cases, 100 U. S. 457, on opposite sides of what is the real con-
troversy in this case, without regard to the position they occupy in
v.l9,no.7— 30
466 7BDSBAL BEPOBTEB.
the pleading as plaîntiffs or défendants; and it îs insisted that when
80 arranged the interests of the attaching creditors and of the plain-
tiffs in this bill are identical, and that, as some of them are citizens
of the same State as the plaintiffs in the suits, upon which judgments
by confession were entered, but who are défendants to this bill, con-
sequently this court has no jurisdiction of the case. It is manifest,
if this court takes jurisdiction of the suit, ail the attachaient suits
farought by the various parties against Louchheim must necessarily
corne into this court for adjudication if the purpose of the bill is to
be accomplished. The bill is not filed simply to remove the obsta-
cles in the way of the prosecution of the attachment suits and the
collection of judgments, which may be obtained therein, caûsed by
the other judgments heretofore mentioned, rendered upon confession,
but to take possession and dispose of ail the property covered by the
various exécutions and attachments already referred to. It is impor-
tant, therefore, to ascertain whether this position of the défendants is
well taken. The only allégation in the pleadings bearing upon this
part of the case, and which is contained in the bill, is "that as to
whether the respective sums for which said attachments issued are
actually owing by the said Abram J. Louchheim to the above-men-
tioned firms, or as to whether the same, or any part thereof is now
past due, your orators hâve no information, and make them défend-
ants hereto for the purpose of determining such facts and of ascer-
taining whether or not they hâve liens prior to or equal with the lien
of the attachment issued in favor of your orator, and for the purpose
of determining and settling in this suit their respective rights and
interests;" and in the prayer for relief, the bill requests "that the
attachment creditors hereinbefore named, and each of them, be re-
quired to establish and show what, if anything, is due to them upon
their claims against the said Abram J. Louchheim, and the na-
ture and extent of their respective liens, if any they hâve." It is
manifest, therefore, that in order to accomplish the object of the bill
it was indispensable that the attachment creditors should be made
parties; and the real question is whether, as the record now stands,
they are really plaintiffs or défendants. It may be assumed from the
allégations of the bill, if the judgments entered by confession are held
to be valid, there will be little or nothing left for the attaching cred-
itors, including the plaintiffs to this bill. It is not stated that the
bill is filed as well for the henefit of the plaintiffs named therein as
of the other attaching creditors, nor is it stated that any application
was made to the latter to join thèse plaintiffs in the prosecution of
the présent bill; and so far as it now appears, if the plaintiffs shall
prove the allégations of their bill and get rid in whole or in part of
the judgments entered by confession, the resnlt would operate for the
benefit of the attaching creditors as well as of the plaintiffs to the
bill, unless some spécial equity should be obtained by the plaintiffs,
from the fact that they alone of the creditors hâve proceeded in chan-
POLLOK V. LODCHHBIM. 467
cery for the purpose of removing the claims made «nder the judg-
ments rendered bj confession. It will be observed that the bill does
not really make any controversy between thèse plaintifs and the at-
taehing creditors, It does not deny that the debts on which the at-
tachments wereissued were honafide&nà properly enforoeable at law.
The bill simply allèges that the plaintiffa had no information as to
whether the debts are owing or paat due, and states that they are
made parties for the purpose of ascertaining thèse facts; neither does
it allège any priority of lien on the part of the plaintiffs over the at-
taching creditors, but says one of the objecta of making them par-
ties is to ascertain whether their liens are prior or equal to that of
the plaintiffs. I think the case would hâve appeared much stronger
in favor of the jurisdiction of this court if it had been stated that ap-
plication had been made to thèse attaching creditors and they had
declined to take part in thèse équitable proceedings instituted by the
plaintiffs. It may be that they will insiat, as for aught that I can
see they may hâve the right to do, that they shall be made parties with
the plaintiffs in the prosecntion of this bill in equity, sharing with
them in the labor and expense of the litigation. They would then
be co-plaintiffs, and some of them would be citizens of Illinois, and
therefore, citizens of the same state as some of the défendants.
As bas been aiready stated, the allégations of the bill seem to re-
quire the settlement of any controversies which may exist between
ihe attaching creditors and Louchheim. It desires the court to dé-
termine the amount of the debts, whether due, and the nature of the
lien against the property. The substantial result of this is to décide
ail controversies between the attaching creditors and the principal
debtor. There are hère, therefore, nine suits at law between plain-
tiffs, ail of whom, except the plaintiffs in this bill, are citizens of Illi-
nois, against.a défendant who is also a citizen of Illinois. The plain-
tiffa in this bill allège that they do not know what are the facts as to
thèse claims; but the parties to those attaohment suits do know, and
hâve the right to insist, that they should be ascertained, if contro-
verted, by a jury, because they are suits at law; and can the plain-
tiffs in this case deprive them of that right by filing this bill ? As
the case now stands, therefore, I cannot say that it elearly appears
that the right of removal exists, but as the litigation bas onîy jnst
commenced, and this cause is not ready for trial, it may be that be-
fore the plaintiffs shall bave lost the right to remove the case its
status may change so as to présent the question in a différent phase.
On the record now there seems to be no substantial controversy
between the plaintiffs and the attaching creditors, and for aught that
appears the latter may bave been made parties simply for the pur*
pose of giving jurisdiction to this court, as it seems olear that if the
plaintiffs shall obtain a decree upon their bill it will inure as well to
the benefit of the attaching creditors as to the plaintiffs.
It should be stated that the frame of the bill and the question of
468 FEDEBAL EBPOBTEB,
removal are to be applied to the first clause of the second section of
tbe act of 1875, and not to the second clause, where there is a con-
troversy existing between some of the parties, citizens of différent
etates, which can be f uUy determined, as between them, irrespective of
other parties and other controversies in the case.
FLiGLER ENGRAViNa Machine Co. V. Flagler Eud others. (Two
Cases.)
{Circuit Court, D. Masaaehuselis. February 21, 1884.
1. Joint Stock Company — Fraud of Dikectors — By -whom Suit to bb Bbought.
Where the organizers of a joint stock company put in as a part of the capi-
tal stock certain patent rights, and by fraudulent pufflng induced others to pur-
chase the stock at factltious rates, held, that whether the purchasers could set
aside the sales or not, they were not entitled to gain control of the company
and pursue their remedy against the fraudulent directors in the eorporate name.
2. MAf^ER'8 FlNUIKO Affirmed.
In Equity.
Bail, Storey é Tower, for complainant.
N. B. Bryant and J. M. Baker, for défendants.
LowBLL, J. Thèse suits in equity corne up upon the report of Mr.
Merwin, as spécial master. Both are brought by the Flagler En-
graving Machine Company, a corporation established under the laws
of Connecticut, but having its business in Boston, against the same
défendants. In the second, and more important, case, the company
complain that the défendants, Flagler, Bartlett, and Chaffee, in Jan-
uary, 1880, conspired together to form, and did form, the plaintifif
corporation, with a capital of $300,000, divided into 3,000 shares
of the par value of $100 each, and put into the company as its cap-
ital stock certain rights and interests under letters patent of the
United States, numbered 174,715, and 191,821, of inconsiderable
value, very much less than $300,000; that of the 3,000 shares,
Flagler received 1,425, and each of the other défendants 663; that
the défendants were duly elected directors of the company, and that
Flagler was elected président, Bartlett secretary, and Chaffee treas-
urer; that afterwards the défendants voted to authorize Flagler, as
président, to convey to A. S. Sullivan, of New York, as trustée for a
corporation called the New York & London Métal, Wood & Stone
Working Company, ail the patent rights and interests of the com-
plainants, and that they were conveyed accordingly, so that the com-
plainants cannot tender the respondents a reconyeyance of those
rights and interests; that the complainants are not bound by the
fraudulent acts of the défendants, and are unwilling to aceept the
patent rights in payment for the shares of capital stock issued to the
FLAGLEB ENGSÀVINa MACHINE 00. V. FLAGLEB. é69
défendants, and demand the par value of the shares in money, less
the value, if any, of the patent rights.
The case lias been argued upon several issues besides that raised
by the bill, which is that the défendants are bound to' pay the par
value of tbeir shares in money. The faets, as found by the master,
are that Flagler owned an exclusive license for the United States to
use the inventions of one Atchison, deseribed in the patents referred
to, for working on metals. He likewise owned foreign patents for
the same inventions in Great Britain, Canada, France, Germany,
Italy, and Belgium, and the right to obtain patents in ail other for-
eign countries. One Benyon, of Boston, and a corporation in Chi-
cago, owned, respectively, the exclusive rights for the United States
to use the invention in working wood and stone. The value of the right
for wood working is estimated, by the person beat informed upon the
subject, at about $20,000 ; the right to work upon metals and upon
stone are of some value, but the master cannot estimate the former,
and the évidence gives none of the latter; but they are, probably, to-
gether, of less value than f 20,000. In January, 1880, Flagler gave
the other défendants to understand that the machine would do much
more important and complicated work than it could really perform.
He showed them a watch which he said was engraved by the ma-
chine, but which was, in truth, made by hand. The machine would
only do frost work, or "matting," which was, comparatively speaking,
of little value to the trade. One firm had paid a royalty of about
$275 a year to the inventor, Atchison, for tbree years, for the use of
one machine, but the fashion had changed, and they had not renewed
their contract after 1878. The master finds that the défendants
Bartlett and Chaffee were deceived by Flagler, and honestly believed
that the patent right might be made to earn a fair income on $300,-
000. The three défendants organized a corporation under the laws
of Connecticut, and put the patent rights in as the capital. They
gave 250 shares to the company itself, as "treasury stock," and kept
the remainder, aB alleged in the bill. The'master finds that the law
of Connecticuti at that time, permitted property to be used as the
capital of a corporation. The défendants, acting for the company,
employed a broker to sell the treasury stock, and published advertise-
ments in which the value of the patent was set forth in the most
glowing terms; and some positively false and fraudulent statements
were made in thèse ad vertisements, with theàssent of ail the défendants.
By thèse means a great demand for the shares was createdj and they
were ail sold in a few days. It is plain, I think, and I do not under-
stand it to be questioned, that every person concerned understood
t)iat the patent was the capital, and that the nominal value of $800,-
000 was merely arbitrary, Indeed, the advertisements represent it
as much too small a vaiuàtion» No one says that he understood
$300,000 had been paid for the property, The sales were made upon
the représentations of what the machine would accomplish, and of
470 FEDERAL BEPOBTEB.
the demand for machines by jewelers and others; and the priées at
which the shares were taken varied from $100 to $300, and even
more, in which the nominal capital of the Company was simply the
point of departure. The money reeeived for thèse 250 shares was
put into the treasury of the company. The défendants, as directors
of the company, passed a vote in February, while the sales of treas-
ury stock were going on, to sell 300 shares more, and pay the pro-
ceeds to Flagler for his rights in foreign countries. About 195 shares
were.soîd, and from this source the défendants reeeived the only
money which came to them at any time. 'Thèse shares were con-
iributed by the défendants, and the proceeds were divided among
them in proportion to their several holdings of shares. The money
passed through the hands of the treasurer of the company. The de-
fendants gave the shares to the company and took back the proceeds
at the same time, but lef t with the company, or subject to its order,
the patents and patent rights for foreign countries. The occasion
for passing a vote to authorize the sales of shares appears to hâve
been that there was some agreement not to sell shares without the
consent of the company. The défendants then gave the company
the foreign interests in exchange for a permission to sell some of their
own shares.
Erom this statement of facts it appears that certain persons were
probably indueed to buy stock by false and fraudaient représenta-
tions; and for this wrong I do not doubt that there is a remedy. But
Icannot see howthe company itself can work out the remedy. There
was no contract that the défendants should pay for their shares in
money, and no such contract can be set up by estoppel, because no
one ever supposed that they had made any such ; nor is it true, uor
did any one suppose, that they warranted the propertyto beworth its
nominal estimated value. The actual fraud was not in fixing the
capital stock at a certain sum, but in puffing the property afterwards ;
and the persons who suffered were those who were indueed to buy
shares in the market. The shares were not subscribed for at par,
but bought. The purchasers, some or ail of them, may bave a right
to set aside the sales, and to recover their money of the company or
the défendants, or both, but they are necessary parties to the suit or
suits, and they cannot, by obtaining control of the company, set «p
an artificial case and recover through the company what is really
their own loss, from which the company itself was enriehed. This
is the view which the master takes of the case, and I concur in it.
In the other suit, the company assuming that it was legally organ-
ized and is to continue its corporate existence, asks an account from
the défendants, its former officers, of the money paid into the treas-
ury for the 250 shares of "treasury stock." The master finds that
this sum was $33,180. The plaintiflfs insist that it was a larger
sum ; but I cannot find that the master has made a mistake in this
respect. When the présent managers obtained control of the corn-
HAZABD V. DURANT. ^1
pany, the money turned over to tliem -was between $5,000 and
$6,000. The remainder had.been paid out. The principal items of
payaient are connected with the Ne-w York company. The défendants,
encouraged by their extraordinary success in soUing shares in Boston,
determined to set up a company in New York, and, in addition to the.
patent rights which they already owned, to procure a transfer to the
New York company of the right to use the patented invention in
working wood and stone, whicÊ were owned by other peraons. The
several parties were to take the stock in the New York company in
certain proportions. A company was organized under the law of
Connecticut, and established in New York, and rooms were fitted up
there in which the machine was exhibited in its opération upon wood
and stone. Few buyers of stock were found, and the enterprise bas
not proved succeasful. The plaintiff company advanced to the New
York company the money necessary to fit up the rooms and do the
other things supposed to be necessary for the successful launching
of the new corporation. The ùiaster finds that this is a debt against
the New York company, and that the loan was justifiable. Thisjde-
cision I understand to rest upon the assumption, which is necessary
in this case, that the plaintiff corporation is not to be dissolved. But
h as an existence as a company engaged in dealing with certain pat-
ent rights. From this point of view, the master considers that the
company had reason to expect a return and repayment of the moiiey
expended in aid of the New York company. I affiiin this finding.
I note that ail, or nearly ail,' the shareholders appear to hâve known
of this enterprise, and that no one objected to it.
I disallow, , as against the treasurer, Mr. Ghaffee, and the défend-
ant Plagier, a sum negligently paid by the former to the latter, for
machines already once: paid for, $750. I disallow one-half of the
charges for advertising, because a considérable part of the sales were
for the benefit of the défendants, as 1 bave shown. I disallow one-
half of the $500 paid to Mandell, because I think so much of it was.
paid for a certificate of value which was etaggerated, and only the
other half for work. doue. In other respects, the report of the master
is conflrmed.
Hazaed, Commissioner, v. Dueant and othera.
Samb ». Same.
(Circuit Court, D. Massachusetta. February 15, 1884.) i :
l, Eq0ITT PLBADma— RELEVANCT OP AVEEMENTS. / ' - ; .
A stockliolder of the Crédit Mobilier brought suit in behalf of hisisetf and
others against Thomas C, Durant and otliers, trustées, to enforcetlie trust, aud
set forih in hïs bill a deeree fornieily rendered Ih'adifïererit court déclaiing
472 FEDEBAL BEPORTER.
certain shares nominally held by Durant to be in fact thé property of the stock-
holders of the Crédit Mobilier and appointing the plaintifE in the présent case
rcceiver of ail moneys due from Durant to the stockholders. Held, that the
averment of the plaintiiï's appointaient as receiver was relevant astending to
show the disposition to be made in the final decree of the moneys for whicli
the défendants inay be held accountable.
2. BlTHVIVAL OF LlABILITY POE BrEACH OF TrUST — JOINDBB OF DBBENDANTS.
The Personal représentatives of a deceased trustée are liable to the estent of
their assets for breaches of trust committed in his life-iime; and in caseofa
joint breach of trust the représentatives of a deceased trustée may be joined
•with the survivors as défendants.
3. Absbncb of Parties bbtond thb Jdrisdiction of thb Couet — Whbn Re-
lief wn^L BB Gkantbd.
When effectuai relief can begiven against the parties actually appearing, the
courts of the United States will not dismiss a bill because of the absence of
other parties whose appearance would be required if they were within the ju-
risdiction of the court.
4. Samb— JoiKT Breach of Tkubt.
Such relief can be given against one of several trustées jointly implicated in
a breach of trust, since their liability is several as well as joint.
5. PowBRs OF Receiver Limited to thb Jcrisdiction whbrb Appointed.
A receiver appointed in one jurisdiotlon to take charge of a fund cannot sue
in another in his own name, though expressly authorized by the decree to main-
tain actions in his own name.
In Equitj.
Elias Merwin, for complamant.
S. Bartlett and R. D. Smith, for défendants.
Before Lowell and Nelson, JJ.
Nelson, J. Thèse suits, arising out of the same transactions, and
between the same parties, may conveniently be considered together.
In the flrst case, the plaintiff brings his bill "as he is commissioner
under the decree of the suprême court of Ehode Island, in a suit in
equity pending in said court, wherein the said Rowland Hazard and
others are complainants and Thomas C. Durant and others are de-
fendants," and "in behalf of himself and ail others who were stock-
holders in the Crédit Mobilier of America, on the fifteenth day of
July, 1867."
The allégations of the bill, filed December 7, 1882, are in substance
as follows : On the sixteenth of August, 1867, a contract was made
between the Union Pacific Eailroad Company and Oakes Ames,
whereby Ames nndertook to build and equip certain portions of the
railroad and telegraph lines of the Company, in which agreement were
set forth the terms upon which the building and equipment were to
be undertaken, the extent and character of the work to be done, and
the times and amounts of payment to be made by the Company for
its performance. On the fifteenth of October, 1867, an agreement in
writing was made between Oakes Ames, party of the first part, Thomas
C. Durant and six other persons, named as trustées, parties of the
second part, and the Crédit Mobilier of America, party of the third
part, by which the construction contract between Ames and the Union
Pacific Railroad Company was assigned to the trustées, parties of the
Becond part, upon the trusts and conditions that the trustées should
HAZi.BD V. DCBANT. 473
perform ail the terms and conditions of the construction contract
■which were to bave been performed by Ames, and that the avails and
proceeds of the contract, after certain déductions for expenses, should
be beld by the trustées for the use and benefit of the several persons
owning and holding shares in the capital stock of the Crédit Mobilier
of America, and for the usé and beneât of the assignées of such
holders \f ho might comply with the provisions of the agreement. On
the third of July, 1868, the first agreement was so far changed and
modified by a new agreement executed by ail the parties, that the
trusts in favor of the stockholders and the assignées of stookholders
•were transferred to and vested in the persons specified in the instru-
ment, who constituted ail the stockholders of the Crédit Mobilier.
The plaintifif, at the date of the trust agreement, was and has since
continued to be, a stockbolder in the Crédit Mobilier, and has com-
plied -with ail the provisions of the agreement. The Mil also sets
forth the proceedings and decree in the Ehode Island suit, as is more
fully stated later on. The bill allèges that in the exécution of the
trusts thus ereated, money and securities to a large amount came into
the hands of the original trustées, or their successors, a portion of
which has been divided among the stockholders, but the residue,
alleged to amount to many millions of dollars, the trustées bave failed
and refused to account for and distribute; and, also, that the trustées
hâve been guilty of willful négligence and misconduct in the manage-
ment of the trusts. The prayer of the bill is for an account and for
other reliff.
In the second suit, the plaintiff proceeds alone in his capacity as
commissioner appointed in the Rhode Island suit. The bill sets
forth the construction "contract between Cakes Ames and the Pacific
Eailroad Company, the agreement by -which it was assigned to the
trustées for the benefit of the Crédit Mobilier stockholders, the later
modifying agreement, the acceptance of the trusts by the trustées,
the receipt by them of money and securities to a large amount for
which they are acoountable under the trust agreement, and their re-
fusai to account. The bill further states that in August, 1868, Isaac
P. Hazard and others, as stockholders in the Crédit Mobilier and
beneficiaries under the trust agreement, brought a suit in equity
against the trustées and others in the suprême court of the state of
Rhode Island; that process was issued and served upon Durant,
Oliver Ames, John Duff , and some of the other défendants, who were
found within the jurisdiction, and that they appeared in the suit;
and, upon the decease of Ames and Duff, their executors were made
parties, and duly cited to appear; that on the twenty-second of the
same month an injunction was issued in the suit enjoining Durant
from receiving or disposing of any dividends then declared or which
should be thereafter declared, on 6,658 shares of the capital stock of .
the Crédit Mobilier standing in his name; and that on the same day
the injunction was served on Durant, Ames, and Duff, and the other
iti FBDBBAI/ BEPOBTEB.
trustées; that the trustées, in violation 6f the injunction and con«
spiring with Durant to deprive the stockholders of the benefit of the
injunction and of the dividends and profits on the shares, in Janu-
ary, 1869, and again in Februàry, 1870, transferred and delivered to
Durant certain shares and income bonds of the Union Pacific Eail-
road Company, being dividends on the 5,668, shares of Crédit Mobi-
lier stock; that by the final decree entered in the cause December 2,
1882, against Durant alone, it was adjudged and decreedj in acoord-
anee with the allégations of the bill,ithat the 5,658 shares standing
in the name of Durant, as nominal ownër, in fact belonged to the
stockholders X)f the Crédit Mobilier, and should inure to their bene-
fit; and that Durant should, within 30 days from that date, transfer
and deliver the shares and ail dividends received by him thereon ta
the plaintiff and one Henry Martin, or either of them, as spécial
commissiohera, for the benefit of the Crédit Mobilier stockholders;
and that the oommissioners should jointly and severally hâve power
to take measures forthwith,iby suit in their own name or otherwise,
to enforce the transfer and deliveryof the shares and dividends ; and
that Durant waa aeeountable for and should pay for the benefit of
the oomplainants in the suit, and the other beneficjaries under the
trust: agreement, the sum of $16,;071,659. 97, within 90 days from
the date of the decree. The bill further averred that Durant had
disposed of the dividends and was insol^ent. The prayer of the bill
was for an account of ail the profita received by the trustées under
the trust agreement, and of the dividends paid over to Durant, and
for such orders and deorees as should be necessary to carry into
elifect the Ehodelsland decree. The défendants in eaeh case are
three of the original trustées, the executors of others who hâve de-
ceased, three persons substituted.in; the place of deceased trustée?,
and the Crédit Mobilier of America, alleged to be a corporation
ereated under the laws of the state of Pennsylvania. In eaeh case
the plaintiff prays for process against those of the défendants who
are citizens of this state, and that those residing out of the state
may be cited to appear. Those residing out of the state were not
served with. process, and did not appear. The executors of Oliver
Ames, an original trustée, who died in 1877, the exeoutors of John
Dufï, who died in 1881, appointed in March, 1868, in place of an
original trustée, Frederick L. Ames and F. Gordon Dexter, appointed
in place of deceased trustées, the only défendants who were citizens
of Massachusetts, appeared and filed demurrers, upon which the
cases were heard.
An objection is taken in the first suit that the plaintiff's bill is
brought in two capacities — one as commissioner under the Ehode
Island decree, and the other in his individual capacity in behalf of
himself and the other stockholders. But we think the bill is suscep-
tible of a différent construction. That the plaintiff can sue as a stock-
holder in behalf of ail cannot admit of question. By the decree in
HAZàBD V. DURANT. 475
the Ehodé Island suit, whioh upon its face seèms to be valid as be-
tween Durant and the other stockholders, it has been finally determined
that the 5,658 shares standing in Durant's name as nominal owner,
and ail dividende accruing thereon, in fact belong to the other stock-
holders. It was therefore proper that this should be made to appear
to the court, so that in the distribution of the avails of this suit the
proportion pertaining to the shares should not be paid over to Durant
as ownerj but should either go to the plaintifif, as commissioner or re-
eeiver appointed to receive them by a court of compétent jurisdiction,
or in some other form, to be settled iu the final decree, should inure
for thè benefit of the stookholders. Considered in this view, the aver-
ments of the bill relative to the plaintiff's appointment as commis-
sioner are pertinent and material.
Another objection is that the executors of the deceased trustées are
not accountable for breaches of the trust committed by their testators
in their life-time. But that the executors are liable in such cases to
the extent of the assets in their hands, is clear upon ail the authori-
ties. In Hill, Trust. 520, the rule is stated to be this:
"The executor or administrator of a deceased trustée is liable to the extent
of the assets for a breach of trust committed by the testator or intestate in
his life-time; and this liability may be enforced by suit. And •when there
are several co-trustees, who hâve been ail implicated in a breach of trust, the
représentatives of those dying flrst will be liable to the same extent jointly
with the surviving trustées, or their représentatives if dead."
In 2 Perry, Trusts, § 877, the rule is thus expressed:
"The représentatives of a deceased po-trustee are liable to the extent of as-
sets received by them, for a breach of trust committed in his life-time, and
they may ail be joined that their relative rights may be ascertadned in the
suit."
There is nothing in the bill to show that the securities alleged to
hâve coma into the hands of the trustées cannot be transferred by
the défendants before the court. Whether if this were otherwise it
would afford an excuse to the défendants for not acoounting for the
securities, is not a question which it is necessary now to consider.
Another ground of demurrer in the first suit, assigned ore tenus at
the argument, is that the suit cannot be maintained, or a decree of
the charaeter sought be made against the défendants who hâve ap-
peared, until ail the other existing trustées shall also bave appeared
and submitted to the jurisdiction. Section 737 of the Eevised Stat-
utes — a re-enactment of the first section of the act of February 28,
1839 (5 St. 321)— is as follows :
"When there are several défendants in any suit at law or in equity, and
one or more of them are neither iiihabitants of nor found within the district
in which the suit is brought and do not voluntarily appear, the court may en-
tertain jurisdiction, and proceed to the trial and adjudication of the suit be-
tween the parties who are properly before it; but the judgment or decree
rondered therein shall not conclude or préjudice other parties not regularly
served vvith process nor voluntarily appearing to.answer; and the novi-Joinder
476 7EDEBâIi bepobteb.
of parties who are not inhabitanta of nor found withîn the district, as afore-
said. shall not constitute matter of abatemeut or obieetion to the suit."
The effect of this statuts and of the forty-seventh equity rule, made
to regulate the praotice of the court under it, has received the con-
struction of the suprême court. The rule now well settled by the dé-
cisions is thia: When there are parties who cannot be subjected to
the jurisdiction of the court, whose intereat in the subject-matter
of the suit and in the relief sought are so bound up with the other
parties that their présence is an absolute necessity, without which the
court cannot proceed and make an effectuai decree, the suit will not
be maintained; but when an effectuai decree can be made between
the parties aotually before the court, it will entertain the suit and
proceed to administer such relief as may be in its power, although
there may be absent parties, whose présence the court would require,
if within its jurisdiction. Shields v. Barron, 17 How. 130; Barney v.
Baltimore City, 6 Wall. 280 ; Kendig V. Dean, 97 U. S. 423 ; Goodman
V. Niblack, 102 U. S. 556; Story, Eq. PI. §§ 78, 79.
Taking the narrative of the bill to be true, as we are bound to do
by the demurrer, the trustées, acting jointly, hâve received many
millions of dollars in money and securities, the property of the stock-
holders, which they still retain, and refuse to account for under the
trust agreement ; and they hâve also been jointly guilty of gross nég-
ligence and misconduct in the management of the trusts, from which
the stockholders hâve suffered loss. Can the co-trustees relieve,
themselves from ail liability in such a case by simply taking up their
résidences in différent states? We think not, By thefamiliar rules
of the law, the liability of co-trustees, who hâve joined in a breaeh
of the trust, is several as well as joint. If they are jointly implicated
in the breaeh, they may be properly joined by the cestui que trust in a
suit to enforce their liability, and he may hâve a decree against them
jointly'; but he may take out exécution against any one of them sep-
arately, as each is liable for the whole amount. If any one of them
is compelled to pay the whole, he may hâve contribution from the
others who are implicated with him. Undoubtedly diÊBculties may
arise in adjusting the equities between the co-trustees, where ail of
them are not before the court, but the inconvenience springs from
their own wrongful acts, and should he suffered by them, and not by
the cestui que trust. Palmer v. Stevens, 100 Mass. 461; Hill, Trust.
520 ; 2 Perry, Trusts, § 848.
We therefore hold, upou the case stated in the bill in the first suit,
that this court can render an effectuai decree against the défendants
who hâve appeared, and has jurisdiction to entertain the suit against
them in the absence of the other trustées, who cannot be served with
process.
In the second suit, the plaintiff sues alone in his capacity as com-
missioner. He does not now ask to maintain the bill for any other
purpose than to compel the trustées to account for the dividends on
DAVIS ». DUSOAN. 477
the 5,658 shares paid to Durant after the service of the injonction.
His position is that the dividends were charged in the hands of the
trustées with a trust in favor of the stockholders, who where the
équitable owners of the shares; and, as the trustées paid them to
Durant, -with notice of the équitable title, and with the purpose of
preventing them from coming to the stockholders, they should be held
accountable for them to him as the person officially authorized by the
Ehode Island court to coUect and receive them. Whether, under
such circumstances, a suit for the dividends by the stockholders could
be sustained against the trustées, it is not necessary to inquire. The
plaintiff bas no interest in them derived by assignment from the
stockholders, and no transfer of the shares bas ever been made to
him by Durant. His claim rests solely upon his appointment as
commissioner. Although oalled a commissioner in the decree, it is
évident that his powers and duties are solely those of a receiver, and
he must be treated in that capacity alone.
It was decided in the case of Booth v. Clark, 17 How. 322, a dé-
cision binding in this courtj that a receiver appointed by a court of
chancery, being a mère officer and servant of the court appointing
him, and haviug no title to the fund by assignment or conveyance,
or other lien or interest than that derived from his appointment, can-
not, in his own name, maintain a suit in another jurisdietion to re-
cover the fund, even when expressly authorized by the decree appoint-
ing him to bring suits in his own name. This of itself is a fatal ob-
jection to the second suit, and makes it unnecessary for us to consider
the other objections which hâve been made to the bill.
In the first suit the demurrers are overruled, and in the second
the demurrers are sustained.
Davis v. Duncan, Receiver, and another.*
(Circuit Govrt, 8. D. Mississippi. ' 1884.)
1. RHCErVER— LlABIIilTT FOK TORTB OF EMPLOYES.
A receiver is not personally liable for tlie torts of his employés; it la only
when he commits the wrong himself that he is personally liable.
2. gAME — Action — Proceeding in Rem.
Proceedings against a receiver for the torts of his employ«3, is in the na-
ture of a proceeding in rem, and renders the property held by him as receiver
liable in compensation for such injuries.
3. Samb— Railroad Company.
A railroad conipany is not liable for injuries inflioted by a receiver or his
servants while its property was in the possession of a receiver, and when it was
out of the possession of the property and had no control over it.
4. Samb— DiscHABOE OF Receivek — Disposition op Funds.
After entering an order discharging a receiver, and direotinz him to tnrn
over the property in his hands to the défendant corporation, and which or-
IReported by B. B. Boone, Esq., of the Mobile, Alabama, bal.
478 FBDEBAL ESPOETBB.
der was coiiipMed wîth hy the receiver, the court cannot, after- the adjoura-
ment of the term at which the order was raade and entered of record, in auy
■way alter, change, modify, or expand the decree discharging the receiver, and
again obtain juriadiotion over the property and funds which it had by its de-
cree ordered the receiver to turn over to the corporation.
5. Samk^Pkesidbnt of Corporation Acting as Rbceivbb.
The fact that the receiver was also the président of the corporation can make
no difleience. It is the corporation that holds the property and not the prési-
dent ; he is only the officiai agent of the corporation.
6. Same — Claimb for Personai. Injuries — Payment.
If the decree discliarging the receiver, and iinder which the property was
turnedover to the railway corapany, hadprovided that it should be subject to
the satisfaction of ail claims, whether for personal injuries committed by
the employés of the receiver or for other claims, arising while the property was
under his control, and whether the receiver was dischargéd or not, the court,
as a court of equity, would provide for a proper adjustment and payment of
such claims, as such a provision would hâve been a rétention of jurisdiction of
the cause to tiiat extent.
7. Samk — Défense op Kboeivbr — How Pleaded.
Although permission has beengrantfd by a court to sue its receiver, theright
of the receiver to set up any défense hé may hâve is reserved ; and this can be
done by plea, answer, or demurrer.
Demurrer to Bill.
L. T. Bradshaw and L. Brame, for complainant.
E. L. Russell, B. B. Boone, and Frank Johnson, for défendants.
HiLL", J. The question for décision in this cause arises upon de-
fendants' demurrer to complainant'a bill. The bill in substance
states and charges that défendant Duncan, in a suit in equity pend-
ing in this court, was duly appointed a receiver of the Mobile and
Ohio railroad, and the property belonging to said company; that, act-
ing as such, he was, on the nineteenth day of January, 1883, engaged
by his agents, servants, and employés as a common carrier of pas-
sengers for hiré over said road ; that complainant was a passenger
on one of the trains, having paid his fare to the town of West Point,
on said road; that the night was dark when the train arrivedat that
place, and there were no lights to enable passengers to see in getting
off the train; that while attempting to get off the train, without any
signal, the train made a sudden start, which caused a jerk, by which
he was suddenly thrown against the platform, and his thigh bone was
broken, and other injuries were infiicted upon his person, and from
which he has suffered much pain of body and mind, and bas been at
great expense in being cured of thèse injuries, someof which hefears
may attend him through life ; and that in conséquence of thèse inju-
ries he has been unable to attend to his business afïairs, and has
thereby been rained in fortune, and has suffered damage to the sum
of 115,000 by reason of the négligent and wrongful acts of the con-
ductor, engineer, and employés of said Duncan, and for which he
claims damages in the said sum of $15,000. The bill further charges
that on the tenth day of February, 1883, in thematterof saidreceiv-
ership, a decree was made and entered in this court, approving and
conflrming alï the accounts and dealings of said Duncan, and accept-
ing his résignation and discharging him as receiver, upon condition
DAVIS :».. DONCAN. , 479
that he' should prôduce and file, in this court, the acquittance and re-
ceipt of said Mobile & Ohio Eailroad Company in full settlement, as
set forth in said deeree, but that he bas not done so, as complainant
is informed and believes, and charges that said résignation bas not
been accepted and said receiver diseharged. That said Duncan, in
appiying for his discharge, led the court to believe that ail lùatters,
exoept pending suits, by and against him as receiver, had been set-
tled, and that therèforè. it was unnecessary to continue said receiver^
ship exoept for the purposes of pending suits or actions, and that said
Dupcan must be held chargeahle with knowledge of his, complain-
ant's said injuries, and his right to compensation out of the property
and assets in his hands as such- receiver, and that he didnot bring no-
tice of the same to the court when said order of discharge was made^
and that complainant had nO notice of the proposed surrender of said
receivership, and never did hâve notice of said proeeedings until
shortly before the filing of this bill, on the twenty-eighth of Decem-
ber, 1883, and insists that he ought not to be aflfected by the same,.
îlhe bill farther allèges that said Duncan was the président of said
Mobile & Ohio Eailroad Company, and one of its directors, at the timô,
of the injuries, and at the time of the surrender of said railroad and
its property^and still i8;,thatia large portion of the raiifoad and
property so sUrrendered is in the state of Mississippi, and in the pos-
session of said Duncan; and that the rights of no third parties hâve
intervened.
Thèse are ail the charges in the bill that need be stated to an un-
derstanding of the questions presented by the demurrer. It is agreed
that in considering the demurrer the deeree discharging the receiver,
as entered, may be considered by the court, as if set forth in the bili.
The proeeedings in this court were in aid of and ancillary to the pro-
ceeding in the circuit court of the United States for the Southern dis-
trict of Alabama, wherethe main suit was instituted and terminated;
eonsequently, this court adopted as its deeree the deorees of that court,
so far as tbey related to settling the rights of the parties to the suit
and the discharge of the receiver, settling only by its own indépend-
ant decrees the rights and liabilities growing out of the receivership
between thexeeeiver and third parties within the jurisdiction of this
court. The deeree of the said circuit court for the Southern district
of Alabama was made on the twenty-fourth day of January, 1883,
and recited that said Duncan, as receiver, had fully accounted with
the court for ail his acts as such receiver, and was ready to surren-:
der ail the property in his hands as such, and which the railroad
Company was ready and willing to receive. "Wbereupon the court
"ordered, adjudged, and decreed that said William Butler Duncan
do, with ail convenient speed, deliver ail the property in his posses-
sion as receiver, under the former order of this court, in the states of
Alabama, Mississippi, Tennessee, and Kentucky to the said Mobile
& Ohio Railroad Company, to be by said corporation managed and op-
480 FSDEBAL SSPOBTKB.
erated as authorized by its charter, and upon the filing in this court
by said Duncan of the acquittance and receipt of said railroad com-
pany, as directed by the former order of this court, the résignation of
said receivership by said Duncan is hereby accepted, and he and his
Bureties foreverdischarged from ail liability as said receiver, except that
ail pending actions and suits by or against said receiver shall be carried
on and prosecuted to conclusion the same as if the said Duncan con-
tinued the receiver of this court in this cause." This decree was re-
ceived and adopted and entered by this court as ancillary to and in
aid of the prooeedings in said cause in that court on the tenth day of
February, 1883.
The bill admits that the property in the hands of the receiver has
been turned over to the railroad company, and that the acquittance
and receipt was filed in that court before the filing of the bill in this
cause, but that the acquittance and receipt bas not been filed in this
court. It is not denied that the bill sets forth a prima facie claim
for damages, unless the right to recover the same has been lost by
the surrender of the trust property and assets by the receiver, and his
discharge before the commencement of thèse prooeedings. The tum-
ing over of the property and filing the acquittance and receipt, in the
court at Mobile, was under the decree of that court a complète dis-
charge of the receiver, except as to pending suits by and against Dun-
can as receiver. This court only entertained jurisdiction of the case
in aid of and ancillary to the procedings in Mobile, and only for the
purpose of settling controversies between the receiver and third par-
ties, growing out of the receivership. The filing of the acquittance and
receipt of the railroad company in this court was unnecessary and
unimportant, and the want of which did not, in my opinion, continue
the liability of the receiver or render the property and assets turned
over by him liable for any of the acts or wrongs committed by him,
or his agents or employées.
As to ail pending suits, in whatever form, by or against Duncan as
receiver, in either the circuit court of the United States, in Alabama,
or in this court, the receivership and the right to prosecute suoh suits
to a conclusion was reserved, and any decree or judgment against the
receiver became a charge against the property and assets so turned
over, in the same manner that it would hâve been had the order of dis-
charge never been made in either court. In other words, the railroad
company took the property cum onere as to thèse claims. A receiver,
as such upon principle and authority, is not personally liable for the
torts of his employés. Were he so liable, few men would take the
responsibility of such à trust ; it is only when he himself commits the
wrong that he is held personally liable. The proceedings against him
as receiver, for the wrongs of his employés, is in the nature of a pro-
ceeding in rem, and renders the property in his hands, as such, liable
for compensation for such injuries. Meara's Adm'r v. Holbrook, 20
Ohio St. 137; Klein v. Jeivett, 11 C. E. Green, 474; Jordan v. Wells, 3
DATI8 V. DCNCAH. 481
Woods, 527 ; Kennedy v. Indianapolis é G. R. Go. 11 Cent. Law J.
89, The railroad company is not liable for the injuries complained
of in the bill, for the reason that they -were oommitted while it waa
out of possession of the property, and had no control over it. This
eonciusion is sustained by principle and authority. Ohio, etc., R. Go.
V. Davis, 23 Ind. 560; Bellv. Indianapolis, etc., R. Go. 53 Ind. 57;
Metz V. Buffalo, etc., R. Go. 58 N. Y. 61 ; Roger» v. Mobile é 0. R. Go.
17 Cent. Law J. 290 ; Meara's Adm'r v. Holbrook, supra. There is no
allégation in the bill that Duncan had any agency in bringing about
the injuries complained of, or knew anything in relation thereto when
either the deoree of the court at Mobile, or of this court, discharging
him as reeeiver, was made, and it is to be presumed that he did not
hâve Personal knowledge of the occurrence, or that any claim was in-
tended to be made for damages therefor. I take it for granted that
it was supposed there were no claims for damages against the reeeiver,
or, rather, against the property or funds in his hands, which had not
been put in suit, or a réservation would haive been made holding the
funds and property liable, as was done in favor of those in suit. I
am satis&ed that such was the case, or cases like the présent one
would hâve been provided for by the decree of this court in discharg-
ing the reeeiver, as was done in the case of Mississippi Cent. R, Go.
It is very much to be regretted that this provision was not made,
as it may work a serions wrong to the complainant; but the question
is, can this court, after the adjournment of the term at which the or-
der was made, in any way al ter, change, modify, suspend, or expand
the decree discharging the reeeiver, and again obtain jurisdiction of
the property and funds which it had by its decree ordered the reeeiver
to turn over to the corporation, and which it is admitted was done.
I am not aware of any rule by which this can be done. I do not be-
lieve that the fact that Duncan is the président of the corporation
can make any différence. It is the corporation that holds the prop-
erty ^ and not Duncan; he isonly the of&cial agent of the company.
The corporation took the property free from any liens or claims grow-
ing out of the receivership, except those reserved and provided for by
the decree under which the surrender was made to the company, and
under which it is now held. Had the decree under which the prop-
erty was turned over provided that it should be subject to the satis-
faction of ail claims, whether for personal injuries or otherwise, oom-
mitted by the employés of the reeeiver while the property was under
his control, whether the reeeiver was discharged or not, this court, as
a court of equity, would provide for à proper adjustment and payment
of such claims, as such a provision would hâve been a rétention of
jurisdiction to that extent.
The only authority referred to by complainant's counsel in support
of the proposition that the discharge of the reeeiver does not operate
as a discharge of the property held by him for torts committed be-
fore the discharge, is the case of Miller v. Loeb, 64 Barb. 464, re-
v.l9,no.7— 31
482 F|lt)EBAI<.BEFOBT£B.
ferred to by High, Eec. §§ 268, 848. When thaf case is exammea it
wiU be found not to apply tp thecase at bar. The rule stated in that
case is that the diecbarge of a receiver by order of the court is no
bar to an action against bim by third persons claiming property of
which he bas taken possession; when it is alleged that tbe receiver
bas sold ^uch property after notice of the owner's claim thereto, the
court will permit the owner to bring an action against the receiver,
notwithstanding he bas been discharged, especially where tbe claim-
ant had no notice of the receiver's application for discharge. This
was a case in which tbe receiver had possession of the property of
another, and, with knowledge of bis claim, sold the property.
In the présent case the property in the hands of the receiver, and
•whiçh he turned over to the company in obédience to the order of
the court, never was the property of the complainant, and could only
be reached by tbe establishment of the claim for damages in such
way as the court might direct, and obtaining the order of tbe court
that the same should be paid by the receiver out of the trust prop-
erty in his hands. This was not ,done, and the property is now be-
yond the jurisdiction of this court,
It is insisted by complainant's counsel that a receiver occupies the
position of an executor of an estate, and that the courts hâve bolden
that tbe discharge of an executor does not relieve bim from liability
from suit when tbe discharge is granted. In that case the judgment
is against the executor in hia iiduciary capacity, but must be satisfied
out of any of the funds belonging to the estate in his hands, if any
he has; if not, may be satisfied out of such property or means as
may bave passed into the possession of the devisee or legatee, and
upon which the créditer had a lien created by law for the payment
of his demand, the devisee or legatee having taken the property cutn,
onere. In the case at bar this relation and liability does not exist as
above stated. The only. authority to which I hâve been referred or
bave been able to find analogous to tbe présent case is the case of
Farmers Loan é Trust Co. v. Central R. R. oflowa, 7 Fbd. Eep, 537;
in which Judge Love, in the circuit court of the United States for
lowa, in a very learned and exhaustive opinion, holds that no action
can be maintained against the receiver of a railroad after such offi-
cer has been discharged and the property transfered to a purchaser
under an order of the court in a foreclosure proceeding ; and such
purchaser takes tbe property subject to aU claims against the re-
ceiver, when the court has reserved the jurisdiction upon final decree
to enforce, as a lien upon the property, ail liabilities incurred by such
receiver. This opinion .was conçurred in by Judge MoGstAEY, tbe cir-
cuit judge. This ruling does not conflict with the positions stated.
It is oontended by complainants' counsel that to deny tbe relief
prayed for is to acknowledge a right and deny a remedy, which it is
insisted is contrary to légal rules. Eights are often defeated for the
want of applying the proper remedy within the proper time, and under
DESMOND r. CITÏ-OF JfiPPiBSON. éSâ'
which hardshîps are soinetimes suffered; but compîainant may not-
be altogether remediless. The emplojè or employés who caused the
injuries, if the receiver or the property orne in his hands was iiable,
are also Iiable, as having beçn the direct and wrongful cause of the
injuries. The fruits of a suit against them, it is true, may be very
uncertain.
It is insisted by complainant's counsel that the court, or one of its
judges, havinggiven leave to file the bill against the receiver, should
notnow dismiss it, but will permit the cause to. proceed to final decree,
as though the receiversbip remained. In ail such cases the leave to
bring suit in any form reserves the right to the receiver to set up any
défense he may bave, which can be done by plea, answer, or demurrér.
Jordan v. Wells, supra.
After a careful considération of ail the questions involved, I am
unable to corne to any other conclusion than the one that the bill does
not présent a case autborizing the court to grant the relief prayed for
in the bill. While at the same time I regret that the final decree did
not provide for this and ail other claims against the receiver, or the
property and funds which were in his hands, and to which it would
bave been Iiable had proceedings been pending when the final decree
was entered.
The râsult is that the demurrér must be sustained and the bill dis-
missed.
Desmond V. City of Jefperson.
{Circuit Oonrt, W. D. Tentas. January 18, 1883.)
1. MuNiciPAi) Corporation — Aothoritt to Issdb Bonds.
Authority conferred upon a municipal corporation to purchase property fôr
its uses implies the power to issue negotiable Ijonds for that purpose.
2. BAME — POWBRS CONFEBRBD BT CHARTER.
The charter of a city empowers it to organize a flre department and regtilatet
the same, and- to adopt such other measures as should "conduce to the interest
and welfare of said city." Held, that the city was authorized to purchase a flre
engine, and toiséue ils negotiable bonds therefor.
3. Same — Municipal Bonds— Validity Prbsumbd.
Municipal bonds which recite the ordinance under which they were issued
will Ije presumed to be valid without the production in évidence of the ordi-
nance itself
At Law.
Thomas P. Young, for plaîntiff.
Chas. A. Culberson and H. McKay, for défendant.
TuENEK, J. This suit was filed in this court January 18, 1883.
The plaintiff seeks to recover upon quite a number of bonds, with
roupons attaehed, issued by the proper authority, viz., the mayor,
484 FBDEBAL BEPOBTEB.
and attested by the recorder, and dated the third day of September,
1870. Of thèse bonds there were 54 for the sum of $100, and one
for the sum of $50. Thèse bonds were substantially as follows:
"State of Texas, City of Jeffekson.
"No. — . Fire Engine Bonds. , $100
"Authorized by an ordinance of the city of Jefferson. On the flrst day of
July, 1880, the city of Jefferson, Marion county, Texas, will pay to the
bearer of this bond one hundred dollars, with interest f rom date at the rate
of ten per cent, per annum, payable annually at the office of the treasurer of
the city of Jefferson. This debt is authorized by an ordinance of the city of
Jefferson, passed on the eighteenth day of April, 1870, and entitled an ordi-
nance to provide for the issuance of bonds for the purchase of a steamjlre
jmgîne,
"In witness whereof, the mayor of the city of Jefferson, in pursuance of
said ordinance, hath hereunto set his hand and afflxed the seal of the city of
Jefferson this, the (3d) third day of September, 1870.
[Signed] "A. G. Malloy,
"Mayor of the City of Jefferson.
"Attest: J. C. Lane, Eecorder."
To each of thèse bonds coupons were attached for the interest, as
the same accrued by the terms of the bond, and they were as fol-
lows:
"The city of Jefferson will pay to the bearer ten dollars for 12 months' in-
terest, due June, 1880, on bond No. (say) 54, for $100.
[Signed] "A. G. Mallot, Mayor."
Process issued and was served upon John Penman, the officer stat-
ing in his return that said Penman was the acting mayor of the city
of Jefferson, Texas, — service made January 18, 1883. On the four-
teenth day of February, 1883, this court then being in session, the
said Penman filed a motion under oath to quash the service on the
ground that he was not the mayor. The motion to quash was signed
by counsel, and stated that the défendant appeared for the purpose
of the motion only. On the same day, however, counsel for the dé-
fense filed in court spécial exceptions to the pétition, and also filed
answer to the merits. Thèse pleadings, by way of caption, state that
in case the motion to quash is not sustained, then they rely upon the
exceptions and answer to the merits. At that term of the court the
entry upon the minutes shows that the cause was continued by con-
sent of the parties, and no action had upon the motion to quash un-
til the présent time. I am of opinion that if this motion could ever
hâve been available it is too late at this time to press that question.
I find answer to the merits filed — action taken with the concurrence
of the defendant's counsel, who are attomeys of this court. The mo-
tion to quash, therefore, is denied, as I find hère in the case an ap-
pearance which binds défendant, whether properly served or not.
It is admitted that thèse bonds were used in the purchase of a fire
engine for the city, and that if the city had authority to issue thèse
DESMOND V. CITY OF JEFFBESON. 485
bonds and coupons, that, upon the merîts of the case, the plamtîS
bas a right to recover, and that there are no eguities existing against
the bonds and coupons. It is, however, contended that the plaintiff
bas not made ont bis case because he bas not produced in évidence
the ordinance referred to in the bonds tbemselves. Thèse bonds re-
cite upon their face that they were issued in pursuance of an ordi-
nance passed by the city of Jefferson, dated April 18, 1870, entitled
"An ordinance to provide for the issuance of bonds for the purchase
of a steamfire engine." It is believed to be well settled that, if the
power to issue thèse bonds existed in the corporation, the holder will
be protected, and when, as in this case, the authority appears on the
face of the instrument, the courts will présume that the authority was
rightfully exercised.
This brings me to the considération of the main question, viz.,
whether the authority in fact did exist in the corporation to issue
thèse bonds, with the interest coupons attached, which are in the na-
ture of commercial paper. It may be remarked that in this case
none of the evils which flow from the exercise of this power are prés-
ent, as the bonds were disposed of for the very purpose mentioned in
the bonds themselves. The engine was procured for and used byone
of the organized fire companies of the city. Did the power to issue
thèse bonds exist? The charter of the city of Jefferson was passed
September 11, 1866. It confers upon the city the usual powers, such
as contracting and being contracted with, • * • It gives power
"to organize a fire department, and to regulate the same, and to pass
such other laws as may be deemed necessary for the prévention and
extinguishment of fires," etc. If there were no other grant of power,
it would seem to me that it must be held from this that the right to
purchase the engine was clearly granted, if not by spécifie grant, by
necessary implication. The department could not be rendered effect-
ive without it. But this is not ail the power vested in the city by its
charter. After enumerating the above and numerous other powers,
it provides it may "do such other acts and pass such other ordinances,
not inconsistent with the constitution and laws of this state or of the
United States, as may conduce to the interest and welfare of said
city." This is a very large and, in the light of expérience with référ-
ence to other municipal corporations, we might say, a dangerous grant
of power, Can any one doubt that under this authority the city of
Jefferson had the right to issue thèse bonds? She was made the sole
judge as to what would conduce to the interest and welfare of the
city, and the exercise of this power was in direct furtherance of the
spécifie grant in the charter to "organize a fire department, and to
regulate the same, and to pass such other laws as may be deemed
necessary for the prévention and extinguishment of fires." To my
mind this power was ample.
There is no case to be found where, if the power is given by spécifie
grant or by necessary implication, the courts hâve held that this
486 , FEDERAL EEPOBTEB.
charaoter 6î paper is not oblîgatory upon the municipality. Counsel
in this case are forced to admit that the right to purohase this engine
■was given it, if not by spécifie grant, by necessary implication, it being
a necessary and legitimate thing with whioh to carry ont the object
of the charter. But they say, while that is true, no right existed to is-
sue commercial paper, and that to that extent the act was ultra vires.
As I understand the authorities they are not sustained in thisviewof
the law. We must bear in mind that thèse bonds were not issued for
the purpose of borrowing money, but for the purpose of purchasing
a, steam fii-e engine, and were so used in fact. Mr. Dillon, however,
says (see 1 Dill. Mun. Corp. 199, 200) few adjudications favor the
idea that it makes any différence whether for the one purpose or
the other. That corporations may exercise the following powers can-
not be disputed: (1) Those granted by express words; (2) those
necessarily or fairly implied in or incident to the powers expressly
granted; and (3) those essential to the declared objecta and pur-
poses of the corporation. See l.Dill. Mun. Corp. 173.
I am referred by counsel to the case of Police Jury v. Britton, 15
Wall. 566. In that case the bonds were declared to bave been issued
without authority. The police jury did not hâve any right to issue
them ; among other reasons, that the right to issue bonds at ail was
coupled with conditions not complied with; and again, that the police
jury were authorized to issue bonds to the extent of $200,000, whioh
power had been exhausted before those bonds were issued. And by
an examination of that case it will be seen (see page 572) that it is
conceded it is not necessary in ail cases that express authority to
issue such security is necessary, and concèdes that the power to pur-
chrase property for a market-house confers the right to issue bonds of
this character. This is upon the well-settled doctrine that where
thèse securities are issued to purchase property for the use of the cor-
poration, the same being necessary to carry out the object and pur-
pose of the act of incorporation, they are valid and binding, and may
properly be issued as in this instance, viz., with the qualities of com-
mercial paper. It will be seeu, therefore, from a careful examination
of that case that the doctrine therein announced, when applied to the
facts in this case, sustains the views of plaintiff in this case.
I am next referred to the case of Ghisholm v. City of Montgomery,
2 Woods, 592. In this case the bonds were issued by the city to aid
in the construction of plank-roads — works of internai improvement.
The judge held (1) that there was no authority found in the charter
for the isBuance of thèse bonds ; and I will add that the building of
piank-roads was foreign to the pnrposes for which the charter was
granted. The learned judge held them void, and there can be no
doubt of the eorrectness of the détermination. But it is said that the
case of The Mayor v. Ray, 19 Wall. 468, is authority against tbe
validity of thèse bonds. Let us see. In that case Mr. Justice Brad-
LEY delivered the opinion of the court. The case was reversed because
DESMOND V. OITY OF JEPFEESON. t87
the court below refused to let the mayor show that the holder pur-
chased after maturity, and that the bonds Were tainted with fraud.
It is true in delivering this opinion Mr. Justice Beadley déclares that
without express authority a municipal corporation carinot lawfuUy
exercise the right to issue this class of paper. On examination of
the case, however, it will be seen that upon the question involved
hère, in part, and as to the reasoning of Judge Beadlex upon the
question, Justices Hunt, Cliffokd, Swaynb, and Stbong took occasion
to dissent, declaring that the doctrine announced by Mr. Justice
Bradley as to the point in question is not the law as settled by re-
peated décisions of that court.
One other point is made, and that îs that as the act of incorpora-
tion provided that bonds for certain purposes might issue, viz., for
building jails, erecting wharfs, building free bridge, aiding the im-
provement of the navigation between the eity of Jeiïeirson and Shreve-
port, Louisiana, or in the construction of railroads to or from JefiFer-
son, as matter of law, fôr ail other expenditures, certiûcates of in-
debtedness, not in the shape ôf commercial paper, coùld alone issue.
Section 10 of the act of incorporation confers the gênerai powers,
and confers ail the powers, as I think, to purchase the engine, ani?
to make the ordinance under which it was purchased, and which au-
thorized the issuance and makes binding thèse bonds. It is section
12 that grants authority to issue bonds for the purposes mentioned
in that section. Some of the purposes, it must be admitted, do not
pertain to the exercise of the ordinary or legitimate business of city
government; and such authority was necessary; and the doctrine of
exclusio unis, etc., does not obtain, in my judgment, to the extent of
destrôying the power to purchase the engine under the ordinance
passed in pursuance of the extended authority to pass any law or
ordinance that the city should deem advisable not in confliot with
the laws of the United States or of this state. There can be no doubt
of one thing — that the merits of this case are with the plaintiff . The
city bas had and retains value received. The défense bas plèaded
the statute of limitations to such of the coupons as were' past due
four years before the institution of this suit, and to this extent the dé-
fense is sustained. And it seems to me that there is another view of
this case that must be fatal to the défense. It is this : thé défendant
bas and still holds for its use the engine purchased with tliese iden-
tical bonds, makes no complaint with référence to its not being ail
that could be desired, and I think must be held estopped from deny-
ing plaintiff' s right to recover.
Judgment for plaintiff for the amount due upon the bonds sued
upon, and upon such of the interest coupons as were not barred at
the date of filing this suit, together with costs of suit.
4'S8 FBDSBAL BEPOBTEB.
AivLisoN, Ex'x, etc., v. Chapman.
{pircuit Court, D. New Jersey. January 20, 1884.)
Action upon Judgment Obtained bt Feaud in anotheb Btatb.
In an action of debt in one state upon a judgment obtained in another, a plea
that the Judgment was obtained by fraud is no défense. To avall himself of
sucli a defenae, tbe judgiuent debtor must invoke the aid of the court upon its
equity side.
In Debt,
J. Henry Stone, for plaintiff.
A. Q. Keashey, for dofendant.
Nixon, J. This is an action of debt upon a jadgment obtained in
the circuit court of the United States for the district of West Virginia.
The first plea is that the alleged judgment was obtained by fraud and
covin. The plaintiff moves to strike out the same. The question is
whether such a plea is allowed as a common-law défense to an action
brought upon a judgment from another state. There is undoubtedly
a conflict of authority and much confusion existing on the subject,
arising partly from the failure of courts to observe the précise nature
and character of such judgments, and partly from the législation of
some of the states, allowing équitable pleas in suits at law. The
courts of civilized nations generally make distinction between foreign
and domestic judgments, holding a record of the former to be only
prima fade évidence, and a record of the latter conclusive évi-
dence. The provision of the constitution of the United States,
(article 4, § 1,) that fuU faith and crédit shall be given in each state
to the public acts, records, and judicial proceedings of every other
state, and that the congress may prescribe the manner in which they
shall be proved, and the effect thereof, places the judgment of the
différent states upon a peculiar footing. They are neither foreign nor
domestic judgments, although partaking more of the qualities of the
latter than the former.
The attention of the suprême court was early called to the effect
which the above-stated provisions of the constitution of the United
States, supplemented by the act of congress of May 26, 1790, (1 St.
at Large, 122,) had upon judgments obtained in other states. Itwas
claimed in Mills v. Duryee, 7 Cranch, 481, that they should be treated
as foreign judgments, and that nil débet was a good plea in a suit
upon such a judgment. But the court denied the validity of the plea,
alleging that it rendered the above clause of the constitution unim-
portant and illusory; that the record of the judgment duly authenti-
cated was conclusive upon the parties ; and that nul tiel record was the
only proper plea. The counsel for the défendant in his brief justified
his plea by the authority of the case of Bank of Australasia v. Nias,
16 Q. B. 717, where it was held that a plea that the judgment on
which the suit was brought was obtained by fraud, would be good;
ALIiISON V. CHAPMAN^ 489
but he did not advert to the reason why i{ was good. The rea-
son is disclosed by Lord Chancellor Selborne, in Ocksenbein v.
Papalier, L. E. 8 Ch. App. Cas. '695, which was an application for an
injunction to stay a suit at law upon judgment to which the défend-
ant had put in the plea of fraud. He refused to interfère upon the
ground that the court at law had jurisdiction, the parliament' having
passed statutes permitting such équitable défenses to be pleaded in
suits at law. The obvious inference from the opinion is that, in the
absence of such législation, the plea would not be allowed.
This subject is fully discussed in 2 Amer. Lead. Cas. 658, and the
conclusion is reached that the allégation in a plea that a judgment
was procured through fraud is not a good common-law défense to a suit
brought upon it in the same or a sister state. To sustain the position
he quotes (1) Benton v. Bergot, 10 Serg. & E. 240, where the suprême
court of Pennsylvania held, on demurrer, that in a suit on a judg-
ment in the court of another state the plea of fraud iû obtaining it was
bad;s (2) Oranger v. Clark, 22 Me. 128, where the controversy was over
a domestic judgment, and where the court said that even if fr'audu-
lently obtained, it must be considered conclusive between the parties
until reversed ; (3) Ckristmas v. RusseU, 5 Wall. 290. The suprême
court in this case, speaking of judgments of sister states, say : "They
certainly are not foreign judgments, under the constitution and laws
of congress, in any proper sensé, because they ' shall hâve such faith
and crédit given to them in every other court within the United States
as they hâve by law or usage in the courts of the state from whence '
they were taken; nor were they domestic judgments in every sensé be-
cause they are not the proper foundation of final process except in the
state where they were rendered. Besides, they are open to inquiry as
to the jurisdiction of the court and notice to the défendant, but in ail
other respects they hâve the same faith and crédit as domestic judg-
ments." And in regard to domestic judgments the court add, that,
under the rules of the common law, if rendered in a court of compé-
tent jurisdiction, they can only be called in question by writ of error,
pétition for new trial, or by bill in chancery. Third persons only
(quoting 2 Saund. 1 PI. & Ev. pt. 1, p. 63,) can set up the défense of
fraud or collusion, and not the parties tothe record, whose only relief
is in equity, except in the case of a judgment obtained on cognovit or
a warrant of attorney. This last case I think governs the présent
motion. The plea must be stricken out.
If the défendant wishes toimpeach the judgment for fraud orcovin
in obtaining it, he must invoke the aid of the court upon the equity
side, whose peeuliar province it is to grant relief in cases of this sort.
See Glover v. Hedges,' Saxt. 119; Power's Ex'rs v. Butler's Adm'r, 3
Green, Ch. 465; Moore v. Gamble, 1 Stockt. 246; Tomkins v. Tom-
Uns, 3 Stockt. 612.
490 JEDEBAL BEEOBTEB.
iuLTMAN and otherg v. Thompson.
(Oircuit Court, D. Minnesota. February 25, 1884.)
New Triai.
New trial ordered, unleas défendant should consent to a judgment against
him for a certain sum.
Motion for a New Trial.
S, L. Pierce, for plaintiffs.
Rogers é Bôgers and Daniel Rohrer, for défendant.
Nelson, J. On the trial of thia case the court decided that the
défendant could offer proof tending to show that the harveater and
binder and mower sold tô Valentine were worthless, or failed to per-
forai work in accordance with the conditions of their sale. Suoh
proof -was offered, by dépositions, of the character of the harvester
and binder, but not in référence to the mower. When the plaintiff's
counsel was asked if he had any évidence to meet the proof ofi?ered
by défendant, he answered "No," and the court said it would be un-
pro Stable to keep the jury, as plaintifE could not recover on the guar-
anty of the obligations givea by Yalentine for this implement. It
wasstafed that plaintiffs were entitled to judgment on the notes given
for the mower, and guarantied by défendant, amounting to $98.75
and interest, as no évidence had been offered of its failure to fulfiU
the terms of sale, and the court said it woilld dismiss the case, and, on
a motion for a new trial or reinstatement, could protect the plaintiffs
if they were entitled to recover this amount. The motion for a new
trial bas been submitted with briefs from ail the counsel, and on a
review of the case I think the plaintiff should recover upon the three
notes guarantied for the sum of $93.70, and interest at 10 par cent,
from February 15, 1879, amounting in ail to the sum of $140.90.
If the défendant wilfnot consent that a judgment for this amount
may be entered against him a neV trial must be granted.
The défendant is given 20 days from this day, February 25, 1884,
to détermine ; and in case Ma counsel do not indicate within the
time his consent to judgment, by iiling a request with the clerk bf
the court, an order for a new trial will then be entered.
In re Leong Yice Dew.
(CïrcMît Court, D. Oalifomia. February 25, 1884.)
Ohinesè' Immi&rAtion' — Rebtbiction Act — Cbbtifioatb of Psetioub Rbsi-
DBNCB — Whbn Exclusive Evidence.
The act of May (i, 1882, restricting Uhinese immigration permits ail laborers
who were in this country at any time before the expiration of 90 days after the
passage of the act, and who shall produce the certifloate provided" for by the
IN BE LEONG YIOK DEW. ,491
act, to go and come at pleasure, and no évidence of previoils résidence, except the
prescribed certificate, can be received from those laborerS who quitted the coun-
tpy since the certiflcates were obtainable ; but those who weat away before the
act waspassed, or before certiflcates were to be had, must be allowed (as Vas held
in the Oaae of Chin A On, 18 Fkd. Rbp. Sû6) to prove their previous résidence
by any compétent évidence.
Application for a Writ of Habeas Corpus. The opinion states the
facts.
T. D. Riordan, for petitioner.
S. G. Hilhorn, U. S. Atty., for the Government.
Before Sawyeb, Hoffman, and Sabin, JJ.
Sawybr, J. The petitioner, a Chinese laborer, who was residing
in the United States on the seventeenth day of November, 1880, left
San Francisco for China, by steamer, on June 16, 1882, without ob-
taining the certificate provided for in section 4 of the act of congress
of May 6, 1882, commonly called the restriction act. He bas now
returned and he seeiis to land without sùch certificate, upon other
proof of his résidence in the United States at the date of the conclu-
sion of the late treaty with China than the certificate provided in said
section 4 of the restriction act. The question is whether he is enti-
tled to land upon other satisfactory proof of former résidence, without
having obtained and produced such certificate. The treaty with
China authorized the government of the United States to "regulate,
limit, or suspend" the coming of "Chinese laborers" to, or résidence
in, the United States. But it provided that "the limitation or sus-
pension shall he reasonahle, and shall apply only to Chinese who may go
to the United States as laborers, other classes not being included in the
limitation." And it was further expressly provided that "législation
Iaken in regard to Chinese laborers will be o/such character only as is
necessary to enforce the régulation, limitation, or suspension" of immi-
gration. It is still further provided that "Chinese laborers who are
tww irt the United States [at the date of the treaty, November 17,
1880] shall be aUowed to go and come of their ownfree will and accord,
and shall be accorded ail the rights, privilèges, immunities, and exemp-
tions which are accorded to the citizens and subjects of the most fa-
vored nation." This treaty having been ratified by the contracting
parties, congress, on May 6, 1882, passed "An act to exécute certain
treaty stipulations relating to Chinese," commonly called the restric-
tion act, under which the questions at issue now arise. As it is not
stated in the act when it should go into opération, we hâve no doubt
that it took effeqt immediately upon its approval by the président.
Section 1 of the act provides —
"That frpm and after the expiration of ninety days next afterthe passage
of this act • * • the coming of C/iinese Zaôorer* to the United States be
and the same is hereby suspended ; and during such suspension it shall not
be lawful for any Chinese laborer to come, or having so come, after the ex-
piration of said ninety days, to remain in the United States."
Section 2 provides —
é92 rKDBBAL EBPOBTEB.
"That the master of any vessel who shall knowingly brîng within the
United States on such vessel or land, or permit to be landed, any Chinese la-
borer from anyforeign port or place shall bedeemed guilty of a misdemeanor,
and shàll be punishwi by fine of not more than flve hundred dollars for each
and every suoh Chinese laborer so brought, " etc.
It will be observed that the language of the provisions of thèse
two sections is broad, comprehensive, and sweeping, and that it in
express terms prohibits "any" and "each and every" Chinese laborer
from coming, or being brought into, or landed, or permitted to be
landed in the United States or having come to remain, and, standing
alone, would exclade each and every Chinese laborer, whether he had
been in the country before or not. It would be difficult to express
that idea more explicitly. But section 3 puts a limitation upon the
comprehensive language of the two preceding sections, and makes au
exception in the following terms :
"The two foregoing sections shall not apply to Chinese laborers who were
in the United States on the seventeenth day of November, eighteen hundred
and eighty, or who shall hâve come into the same before the expiration of
ninety days after the passage of this act, ci.nd who shall produce to suoh
master before going on board such vessel, and shall produoe to the oolleotor
ofthe port in the United States at whioh suoh vessel shall arrive, the évi-
dence hereinafter in this act required, of his being one of the laborers in this
section mentioned."
Thus the exceptions are not Chinese laborers who were merely in
the United States on the day mentioned, but Chinese laborers who
were not only in the United States on that day, but who, in addition,
"shall produce to such master before going on board such vessel, and
shall produce to the collector of the port in the United States at
which such vessel shall arrive, the évidence hereinafter in this act re-
quired, of his being one ofthe laborers in this section mentioned."
Such is the plain language of the act defining the exceptions; and
we are not authorized to enlarge the exceptions thus plainly defined
by any latitudinarian or unwarranted construction, We cannot take
half of the définition of the exception and reject the other half. We
mu st take it as we find it, and that requires the certificate as évidence
of résidence as well as the résidence. It seems clear to us that con-
gress, with référence to Chinese laborers leaving the country, and hav-
ing an opportunity to obtain the requisite certificate, intended to pre-
scribe the évidence upon which they should be permitted to re-enter
the United States, and that the évidence prescribed is a limitation
upon, and forma a part of, the définition of the exceptions intended
to be made to the comprehensive language of the preceding section of
the act. And that évidence is the certificate to be furriished to the
laborers departing from the county by thé collector, or his deputy, oï
the port whence he takes his departure, provided for in the next sec-
tion, being section 4 of the act. This, we think, is the only évidence
of prior résidence and a right tO return of a departing laborer con-
templated by the act of congress. The sweeping language of sections
IN RE LEONQ YICK DEW. é93
1 and 2 quoted, it will be seen, are not permissive in form, but ex-
pressly prohibitory, aud excludes, in uumistakable terms, each and
every Chinese laborer, and but for the exceptions, also explicitly de*
fined in the next section, none of that class could be admitted. None
but those coming within the plain meaning of the language of the ex-
ception can be taken out of the excluding provisions. There is no other
provision in the act to indicate a différent policy, or that congress did
not intend to make the required certificate the only évidence of a right
to return, as to ail those Chinese laborers, who, having a right to the
certificate and the ability to obtain it, départ from the country with-
out obtaining it. On the contrary, the only other sections affording
any inference or light on this point are section 5, pointing out the
mode in which the same class of persons desiring to départ by land
shall procure similar certificates; and section 12, which provides
"that no Chinese person shall be permitted to enter the United States
by land without producing to the officer of customs the certificate in
this act required of Chinese persons seeking to land from a vessel."
This provision is, positively, prohibitory also, and not permissive;
and it particularly and expressly forbids an entïy without the partic-
ular évidence prescribed by this act. There could scarcely bave been
intend ed one rule of évidence for those entering by land and another
for those landed from vessels. We think, then, that the certificate
provided for is the only évidence of the right to re-enter the United
States, or having re-entered, to remain, of a Chinese laborer who bas
departed from the United States, having the opportunity afforded by
the act to obtain the certificate required, whether he cornes by land
or by sea.
We do not wish to be understood as questioning the construction
adopted by the district court, in the Case of Chin A On, 18 Fbd.
Eep. 506, in regard to those Chinese laborers who were living in the
United States at the date of the conclusion of the treaty^ November
17, 1880, or subsequently, and who left the United States prior to
May 6, 1882, the date of thfe passage of the réstriction act. On the
contrary, we are fuUy satisfied of the propriety of the construction
given in that case. Congress could not possibly hâve intended to re-
quire that class of Chinese laborers to procure the required certificate
where it was a physical impossibility for them to obtain it; and it
would be absurd, under the circumstances, to hold that congress in-
tended to, arbitrarily, exclude that class in direct violation of the ex-
press terms of the treaty protecting them, Congress had declined to
enact any such législation as is contained in the restriction act while
the Burlingame treaty was in force, for the reason that it would be
an act of bad faith on the part of the United States towards China,
and a direct violation of the solemn stipulation of the treaty between
the two governments. The United States went to the trouble, ex-
pense, and delay of sending a spécial mission, composed of threedis-
tinguished gentlemen, to China, for the express purpose of proçuring
-494 , /EDEBAL aBPOBTBB. ,
« modification of the Bnrlingame treaty, in order to enable the United
States to adopt the législation now in question without committing an
aot pf bad faith towards China, and without violating the treaty stip-
ulations between the two nations. A treaty was made with the mod-
ifications sought, which was ratified by, and apparently satisfactory
to, both nations. And the modified treaty, in express and the most
explicit terms, protected the class in question in their right to remain
in the United States, or "to go and. corne of their own free will and
accord, " ànd aiso provided that they "shall be accorded ail the rights,
privilèges, immunities, and exemptions which are accorded to the
citizens and subjects of the most favored nation."
It is expressly stipulated in the supplementary treaty that the "lég-
islation taken in regard to Chinese laborers will be of such charaeter
only as is necessary ta enforoe the régulation, limitation, or suspension
of immigration," and that "the limitation or suspension shall be rea-
sonablé." Conceding the législation requiring Chinese laborers de-
pàrting from the United States after the passage of the act in ques-
tiouj and having an opportunity to do so, to procure and produce the
required certifie ate to be "necessary" and "reasonable, " still such a
requirement as to those who departed after the date of the treaty, and
before the passage of the act, or before it was practicable or possible
to obtain the certiûcate, could neither be necessary nor reasonable.
If congress, then, intended by this act to make this provision requir-
ing the prescribed certificates applicable to those Chinese laborers
who were in the United States at the date of the treaty, and who left
before the passage of the act of May 6, 1882, — before it was possible
to obtain the eertificate, — then it was the deliberate intention of con-
gress to act in bad faith towards the government of China, and to
violate the solemn obligations of the very treaty it had taken so great
■pains to obtain, in order to enable it to bonorably legislate at ail upon
the subjecti i Why take ail this trouble to negotiatea treaty if it was
intended at last to flatly disregard it, and legislate in direct violation
of its most solemn and vital Stipulations? Congress might, with just
as much propriety, bave ignored and disregarded the Burlingame as
the supplemental treaty. There would be just as much propriety in
wholly repudiating the treaty as to repudiate it in this vital part,
which the Chinese government took care to hâve inserted. It would
be to the last degree absurd, under the circumstances, to suppose for
a moment: that congress intended to make the provisions of sections
S and 4, relating to certificates, applicable to the class of Chinese la-
borers referred to. We cànnot attribute to congress a deliberate in-
tention to commit any such act of bad fàith without provisions man-
ifestîng such a purposQ far more explicit than any found in the act.
Agaih, the same section which requires thè eertificate gives to the
departing Chinese iaborer an absolute, indefeasible right, without
oost or expense, to haye the eertificate, in order that he may be able-
to produçe it as évidence. of bis right to re-euter the United States.
m BE liEONÛ ÏIOK DBW. è95
Hhe nècessity to produce it, and tîie right to haive it, in order that he
may produce it, are corrélative conditions. Tlie one provision is the
complément of the other. They are reciprocal, and mustgo.together.
The obligation to produce the certificate présupposes the practicability,
or, at least, the possibility, of pfoeuring it, in order that it may be
produced, The two provisions go together, and form- but one légal
conception. The obligation to producé and the right and ability to
obtain it are dépendent, and not independent, conditions. One is the
counterpart of the other, and H is not to be supposed that congress
TFOuld hâve adopted one branch of the proposition without the other,
otherwise it would hâve distinctly done bo in terms. If, then, it is
impossible to comply with the condition, the impossible condition
must be regarded as not intendgd as to this class of laborers; or if
intended, it must be void. The law re^uires nothing impossible—
Lex non cogit ad impossibilia, (Bouv. Law Dict. "Maxims;" Broom,
Max. 242 ;) and Lez non intendit aliqmdimposaibile, (Bouv. Law Dièt.)
■ — the law in tends not anything impossible-:— are amongthe most vén-
érable maxims of the law. In a statute, "No text imposing obliga-
tions is understood to demand impossible things." Sedg. St. Law,
191. "Provisions in acts of parliainent are to be expoùnded accord-
ing to the ordinary sensé of the words, utiless such construction would
lead to some unreasonable resuit, or be inoonsistent with, or contrary
to, the deolared or implied intention of the framer of the law, in whicb
case the grammatical sensé of the words may be modified, restricted,
or extended to meet the plain policy and provision of the aet."
Dwarria' St. 582. The raie is to construe words "in their ordinary
sensé, nnless it would lead to ahsurdity w manifest injustice; and if it
should so vary them as to avoid that which certainly eould not hâve
been the intention of the législature, we must put a reasonable con-
struction upbn the words." Id. 587. SeeDonaldson v. Wood, 22
Wend. 399 ; Lake Shore Ry. Co.V. Boach, 80 N. Y. 339. "Ail laws
should reoeive a sensible construction. General terms should be so
limited in their application as not to lead to injustice, oppression, or
an ahsurd conséquence. It will always, therefore, be preâumed that
the législature intended exceptions to its language wliich woidd avoid re-
sults of this clutracter. The reason of the law in such' cases should
prevàil over the letter." U. S. v, Kirby,7 Wall; 486.' "In whatever
language a statute may be framed, its purpose mnst be determined
by its natural and reasonable effect. * * * To re'quire a heavy
and almoat impossible condition to the exercise of this right, with the
alternative of payment of a small sum of money, is, in effect, to de-
mand payment of that sum." Henderson v. Mayor ofNexv York, 93
D. S. 268. See, also, Lessee of Brewèr v.Blougher, 14 Pet. 198 ; U. S.
V. Freeman, 3 How. 564. So, in the caseôf the classof Chinese laborers
now under considération, to require them' to produce a certificate as
the only évidence of their right to land, wheh it was impossible or
imprakîticflble to procure it, would be, in effect, to absolutely and un«
496 FEDEBAI. REPOBÏEB
eonditionally exclude them. Yet it îs manifestly the policy, intent,
and reason of the law to carry out in good faith the stipulations of
the treaty that they "shall be allowed to go and corne of their own free
will and accord," and "6e accorded ail the rights, privilèges, immunities,
and exemptions which are accorded to the citizena and subjects of the inost
favored nation."
We are therefore fuUy satisfied that those Chinese laborers who
were in the United States on November 17, 1880, and left before the
passage of the restriction act, and those also who came into the United
States and departed therefrom bétween that date and May 6, 1882,
and even afterwards, before the coUeetor was prepared to issue the
certificates provided for in section 4 of the restriction act, "in such
form as the secretary of the treasury shall prescribe," are entitled to
re-enter the United States upon satisfaetory évidence other than the
certificates provided for in said section 4.
The secretary of the treasury^rs* issued his circular, notifying the
varions coUectors of the ports of the United States of the passage
and terms of the restriction act, and indicating the form of certificate
to be nsed, — which form, under the act, is to be prescribedby him alone,
— on May 19, 1882, and that circular was received at the port of
San Francisco on May 26th, in time for the outgoing steamer for
China, which sailed on June 6th. The secretary, however, did not
send out his blanks, or authorize any to be printed by the eollector,
or furnish fuU instructions in time to arrive before August 4th, the
date at which the right of Chinese laborers to enter the United States
expired. They were in fact received at this port on August 8, 1882.
The Chinese consul, on consultation with the officer in charge of the
coUeetor's office, had blank certificates printed, at his own expense,
upon the same sheet with a certificate or passport issued by himself,
^hieh were issued by the coUectors to outgoing Chinese laborers, and
which, by direction of the secretary of the treasury, through télé-
graphie correspondence, were marked "Temporary." The first of
thèse certificates was dated June 6th. From that time till August
8th thèse temporary certificates were issued, at first on the same
sheet with the other issued by the Chinese consul, and afterwards
separately. Thèse certificates hâve been recognized by the eollector
when presented by returning Chinese laborers. Up to the date of
the circular of the secretary of the treasury, received at San Fran-
cisco May 26th, the secretary had not presoiibed the form of the cer-
tificate, and clearly the coUeetor's ofiice at San Francisco was not
in a condition to exécute the law according to its terms in time for
any Chinese laborers departing prior to the sailing of the steamer
which left on June 6th. We therefore hold that those Chinese la-
borers who departed from San Francisco prior to June 6th could
not reasonably procure the prescribed certificate, and they must be
admitted, on their return, on other satisfaetory évidence of their
baving been in the United States between November IT, 1880, and
XJNITKD STATES V. 0HE13MAH. 497
the date of their departure. On and after Jane 6th thé collector
was prepared to carry out the law according to its real intent, and
ail Chinese laborers depaitingfrom the port of San Franoisoo on and
sinoe that date, having had an opportunity to procure the required
certificate, will be required to produoe it.
Unithd States v. Chesman.*
(OircuU Court, B. D. Missouri. March 30, 1881.)
IotMCTMENT for MAIlilNG AN OBSCENE AND INDECENT PUBLICATION.
An illuRtraied pamphlet, purporting to be a work on the subject of the treat-
ment of spermatorhœa and impotency, and consigting partially of extracta f rom
standard bocks upon medieine and surgery, but of an indécent and obscène
charaoter, and intended for gênerai circulation, held to corne within the pro-
visions of section 3893 of the Revised Statutes.
Indictment for depositing in the mail a publication of an obscène
and indécent charaoter. The indictment describes the publication as
"a pamphlet entitled ' Prof. Harris' New Discovery for the Eadical Cure
of Spermatorhœa and Impotency, with the Anatomy and Phj'siology of
the Generative Organs, Illustrated; and the Science of a Eadical Cure. '
By his 'new departure' in the treatment of those troubles, viz., local
absorption at the seat of the disease," — which said publication is so
indécent that the sâme would be offensive to the court hère, and im-
proper to be placed on the records thereof .
William H. Bliss, for the United States.
Dyer, Lee é Ellis, for défendant.
MoCeaet, J. In this case, by agreement, counsel hâve submitted
to the court the question whether the publications complained of
come within the provisions of section 3893 of the Eevised Statutes,
which prohibits the mailing in any post-office of any publication of
an obscène or indécent charaoter. We hâve considered this question
after a full oral argument by counsel, and we are olearly of the opin-
ion that the publications referred to in the indictment and informa-
tion do fall within the provisions of this section jof the statute.
They are clearly both obscène and indécent, and, in our opinion,
within the meaning of the statute. It is not necessary, perhaps, to
say more, but I may remark that it has been insisted by counsel for
the défendant, with great earnestness, that the publications in ques-
tion are, in their charaoter, médical, and that the matters complained
of are, to a large extent, extracts from standard médical works. It
may be, and probably is, true that much of the offensive matter is
taken from books upon medieine and surgery, which would be proper
iReported by Benj. F. Kex, Esq., of the St. Louis bar.
v.l9,no.7— 32
éOS j, OFEDERAL EEPOBTBE.
enough for the gênerai use.of members and studeuts of 't}ie profes-
sion, Thére are many things contained in the standard works ugoa
thèse subjects which, if printed in pamphlet form and spread broad-
caat among the community, being sent through the mail to persons
of ail classes, including boys and girls, wonld be highly indécent and
obscène. I am not prepared to say, and it is not necessary now to
décide, whether thèse médical books could be sent through the mails
without a violation of the statute. The publications before us are
not médical. It is manifest from an examination of them that they are
intended to be circulated generally among the people. We décide at
présent nothing more than they come within the provisions of the stat-
ute, and that when deposited.in the post-office, directed to anyactual
person, the law is violated, without regard to the character of the
person to whom they are directed. This, perhaps, may be shown by
way of mitigation or aggravation of the offense, but not in justifica-
tion.
See, generally, TT. S. v. Kaltmeyer, 16 Fed. Eep. 760, and Sates v. U. S. 10
Fed. Rep. 92, and note.
Tower v. Bemis & Call Hardware & Tool Co. and others.
(Circuit Court, D. Massa ehumtt». February 28, 1884.)
1. Patents— What is Patentable — Mbke AGaRBOATiON.
The mère ■ ombination in a convenient form of several devices, having no
cornmoQ piirpose, is not patentable.
2. Samk — Improved Monkef-Wrench,
Patent No. .^6, 166, for an improvement in monkey-wrenches, cannotbeheld
to cover eVery wrench in which the cam is solidly attached to the jaw, since
similar arrangements were in use before the letters issued.
In Equity.
Z>. IfaZi .fiice, for complainant.
John L, S. Roberts, for défendants.
LowELL, J. The plaintifï owns patent No. 56,166, issued to By-
ron Boardman,. July 10, 1866 ; and it is admitted that the invention
was made in October, 1865. The patent is for an "improvedtool," or,
as the spécification says, "an improved combination tool;" and "the
[one] object of this invention is to combine a pipe-wrench with a
monkey- wrench, dn such manner that two of the jaws of the Iat,ter shall
serve as griping-jaws for firmly holding rods or pipes of varying diam-
eters, which it may be désirable to turn." A second and third purpose
are to combine a screw-driver with the handlo of a wrench in certain
convenient modes. . Of the five claims, only two bave been mentioned
in this suit, and only one is said to be infringed; claim "1, as an im-
provement in monkey-wrenches, the combination of the cam, n, with
TOWER V. BEMIS & CALL HARDWARE & TOOL 00. 499
the movablë ojf fixed jaw-head of a nionkey-wrench, so as to form
thereof a pipe-wrench, substantially as described."
One Park had obtained a patent in 1865, No. 48,037, for a tool
which described, and claimed "a combined hammer, claw, monkey-
wrench, socketrwrench, and sçrew-driver," Boardman's tool is con-
fessedJy and intentionally an improvement upon Park's tooL In the
latter, the jaws of a monkey-wrench were placed on one side of the
common handle, and a hammer and claw on the other side. Board-
man put into the claw of Park's hammer a serrated pièce of steel,
called "the cam, n," which had a rocking motion, and he made a
notch in the hammer opposite the cam, and in this way the claw and
hammer formed a pipe-wrench, as wellas a claw and hammer. Two
monkey-wrenches and two pipe-wrenehes had beenput upon a single
handle before October, 1865, but no tool had been made witb a
monkey-wrench on one side and a pipe-wrench on the other of the
same handJe. A monkey-wrench bas its jaws always parallel and
preferably smooth, so as.to work to the best advantage upon parai-
lel-sided nuts, A pipe-wrench should bavé a notch or curve in one
of its jaws, to embrace the pipe or rod; a serrated surface in the
other, to take better hold ; and this part should hâve a rocking mo-
tion, 80 that the grip of the wrench can be loosed by merely revers-
ing the handle.
The plaintiff contends that Boardman's pipe-wrench, considered by
itself , was the first which had the cam so placed that the strain would
corne upon a solid jaw. The old form of this kind of tool, of which
the défendants made about one hundred dozen a year, for six or seven
years before 1866, was that patented by Bartholemew & Merriek, in
1849, No. 6,002. In this tool, which was an improvement upon one
patented by Merriek in 1848, the upper jaw was curved or notched,
to embrace the rod or pipe, apd the lower jaw was serrated and had
a rocking motion by being pivoted at its lower end, immediately above
the nu t, which actuates the movable jaw. The cam was solid with
the jaw, but the plaintiff insista that too great strain came upon the
pivot. There is no évidence in the record that the Bartholemew &
Merriek wrench ever broke at the pivot, and the Exhibit 1, which rep-
résenta it, appears to be strong; but the wrenches in litigation hère
are still stronger.
Amos Call, a member of the défendant corporation, obtained a pat-
ent in 1866, No. 57,621, for an improyed pipe-wrench, which, in
structure, is the Bartholemew & Merriek tool, with the addition that
the rocking jaw is loosely confined by two cpllars. The invention was
made later than Boardman's. The spécial advantages of this tool
are not explained, but it is obvious that the cpllars prevent the rock-
ing-jaw from rocking too far, and if there was danger of its breaking
at the pivot, it overcomes this difficulty by bringjng the strain, af ter
the rocking bas gone far enough, upon the coUars, and through the
collars upon the handle of the tool. Since this wrench was invented
500 FEDERAL BEPOBTEB, '
the défendants hâve sold it instead of the other form. This tool ia
admitted not to infringe the patent in suit. The défendants likewise
make and sell a tool which unités upon a single handle the jaws of a
monkey-wrench on one side, and the jaws of the Call pipe-wrench on
the other. The question is whether this tool infringes the first claim
of the patent.
The primary examiner rejeoted Boardman's application, saying :
"The tool, as described and shown, is an aggregation of four distinct tools,
answering to four différent purposes, some widely dissimilar, and othera an-
alogous, but in no paffticular does any one of thèse tools add any value to
either of the others, or co-operate therein to efEect a common purpose, and
hence no combinable relationship exists between them. That the aggrega-
tion of thèse several tools in the manner shown résulta in a convenient arti-
cle, is not questioned, and, as au article of manufacture, the tool ao resulting
may posseas patentable novelty, " etc.
The examiners in chief reversed this décision.
Since 1866 the suprême court hâve decided that there is no pat-
entable combination, properly so-called, in an aggregation of devices
which bave no common purpose or efifect, concurrent or saccessive.
Halles V. Van Wormer, 20 Wall. 353 ; Reckendorfer v. Faber, 92 U.
S. 347; Pickering v. McCullough, 104 U. S. 310; Packing Co. Cases,
105 U. S. 566. Applying the rule of those cases to the factsof this,
they décide that a broad claim cannot be sustained for merely put-
ting together two old tools for convenîence of manipulation in their
several and whoUy distinct uses ; but that the patent must be limited
to Bome patentable improvement, either in the method of combining
the tools, or in one or more of the tools themselves. No invention ia
claimed which relates to the mode of combination; but the pipe-
wrench itself is said to be an improvement on ail which preceded it.
The cam, n, is speoifically claimed in the second claim thus :
"The manner herein described of seeuring the pipe-wrench cam within a
recess, se that this cam will be flrmly sustained by the solid métal surround-
ing it, during the opération of turning a cylindrical objeet, and allowed to
play loosely when released, aubstantially as described."
It is not contended that the second claim is infringed, and if it
claims the cam, n, as broadly as the invention will permît, the first
claim is not infringed, which is for the combination of the cam, n,
with one of the jaw-heads of a monkey-wrench. The defendant's cam,
or rocking serrated jaw, is like the old jaw of the Bartholemew &
Merrick wrench, and not at ail, in appearanoe, at least, like a cam
rocking in a recess. It bas solidity, to be sure, but this is not ob-
tained by affixing it any more firmly to the jaw than it was in Bar-
tholemew & Merrick's, where it was a part of the jaw itself, but in put-
ting a collar round that jaw, which pre vents its rocking so far as to
bring a dangerous strain upon the pivot.
There were several kinds of cams in use in pipe-wrenches before
1866, one of which is in the wrench patented to Phillips in 1859,
No. 23,857. In this wrench the serrated cam had a sliding motion
PENTLABGB ». KIBBT. 501
upon the solid lower jaw of a pipe-wrench. The plaintiff's expert
says that this wrench must hâve been of no practical value, because
the sliding cam bas not the rocking or toggle motion neeessary to re-
lease the pipe readily from the grip of the jaws when the handle is
reversed. This criticism is undoubtedly sound in assuming that a
rocking motion is préférable to a sliding one. It was, however, dem-
onstrated at the hearing that Phillips' tool will work to some consid-
érable extent. Whether it was a commercial success, I do not know.
There is no évidence about it, excepting that it was patented and
was made. Considering the existence of the tools which I bave men-
tioned, and of many others having several différent sorts of cams, I
am of opinion that the plaintiff cannot claim every cam which is
solidly attached to the jaw, or jaw-head, and, specifically, that he
cannot claim the cam which the défendant uses, which is the Bar-
tholemew & Merrick rocking jaw, made more convenient and secure
by two collars which play upon the handle. It was not a known sub-
stitute for cam, n, because the collars were new.
It folio ws that the pipe-wrench of the défendants is différent from
that of the plaintiff; and since the broad claim of aggregating any
pipe-wrench with any monkey-wrench upon a single handle cannot
be Bustained, I do not see, as I bave already said, that a wider mean-
ing can be given to cam, n, in the first claim, than if the patent was
for the pipe-wrench alone. There is therefore no infringement.
Bill dismissed, with costs.
Fentlargb V. KiEBT. (Three Cases.)
Pbntlabge, for Himself, and the United States, v. Kiebt Btmo
Manup'g Co. (Three Cases.)
(District Court, 8. D. Nev) York. January 31, 1884.)
1. Patents— Famb Stamping— Rbv. St. H 4901, 732— Pbnaltt.
Section 4901, Rev. 8t. , imposing a penalty for false marking upon articles the
Word " patented" with intent to deceive the public, as a pénal statiite, is to be
Btrictly construed. It makes pénal only the act of stamping. Taking the stamped
articles into another district with the intent to sell them is neither prohibited
nor made pénal, and cannot be construed, as in cases of larceny, as a répétition
or continuance of the act of stamping in the district to which the articles are
reraoved.
3. Same — Statutb Creating New Offense — CoirsTRtrcTioN.
Where a statute créâtes a new offense and at the same time prescribes a par-
ticular and limited remedy, ail différent or other remédies than those prescribed
are to be deemed excluded.
3. Same— Becovbet of Pbnaltï — Action, where Brought.
As section 4901 déclares that the penalty is " to be recovered by suit in any
district of the United States withln whosejurisdiction such oilense may havè
been committed," Juld that no suit for such penalty, can be maintaincd except
502 TEDEBAIi BEPOBTER.
in the'district'wlierë the actof starapîngwaé commlttedj and that the gênerai
'provision of section 732, that suits forpenalties and forfeitures may be brought
wlierever the défendant may be found, does not apply to suits under section
4901. '
4; SAMB— OOMPI.AITÎT— Demuhbkb.
In a suit to recoyer 10 penaltiesof $100 each for falsely stamping certain
■wooden vent bungs with the words " Pat. Nov. 28, 1882," thêcomplaint cliarged
that the articles were so stamped in Cincinnati with intent to bring them to
New York for sale; that they wisre so brought and exposed for sale; and that
the défendant continued and thereby repeated and renewed said false slamp-
ing, etc. Ueld, on demurrcr, that the suit could not be raaintained in this dis-
trict, but only in the district where the articles were actually stamped.
, Demurrer to Complaint.
Érodkead, King é Voorhees, for plaintiflFs.
Edward Fitch, for défendant.
Brown, J. Thèse six actions were brought to recover 10 penalties
of f,100 in each of the six suits, under section 4901 of the Eevised
Statutes, for falsely stamping upon certain unpatented wooden vent
bungs the words "Pat. Nov. 28, 1882," with intent to deceive the
public. The section above referred to imposes upon every person
"who in any manner marks upon or affixes to any unpatented article
the Word 'patent,' or any word importing that the same is patentod,
for the purpose of deceiving the public, a penalty of $100 for each
article so stamped; one-balf of said penalty to the use of the per-:
son whpshall sue for the same, and the other to the use of the United
States, to be recovered by suit in any district court of the United
States within whose jurisdiction such offense may hâve been com-
mitted." In the original complaint it did not appear clearly where
the act of stamping was done, and on motion of the défendant, the
plaintiff was required to make the complaint more definite and cer-
tain in that particular. The amended complaint, accordingly, states
as f ollows :
"That the aboved-named défendant, at Cincinnati, in the state of Ohio, or
other plaée without the state of New York, or without the Southern district
thereof, on or about the flfteenth day of September, 1883, falsely stamped and
procured to be stamped upon and afflxod to ten certain unpatented articles
hereinafter described the words ' Pat. Nov. 28, 1882;' and thereupon said de-
fendant brought, and caused to be brought, said ten unpatented articles to the
City of New York, within this district, and then and there, with intent to
dt'ceive the publie, continued and thereby repeated and renewed said false
stamps, and thereby falsely stamped said articles at said city, ail for the pur-
pose of exposing said articles, and putting the same upon the market at said
city, and inducing the public at said city to understand and believe the said
articles were patented, whereas they were unpatented articles."
To the amended complaint in each of the six actions the défendant
lias demurred for want of jurisdiction, and that no cause of action is
stated.
The statements in the complaint above quoted, to the effect that
the défendant, at the city of New York, "continued and thereby repeated
and renewed said false stamps, and thereby falsely stamped said arti-
cles at said city," etc., are plainly not averments of any real act of
PENTtABCfE V. KIRBT. 503
stainping or affixing the marks referred to, wîthîn thîs district, but
only a statement of such légal efifect as the plaintiff claims to résuit
from the previous act of stamping the articles at Cincinnati, or othei
place without the state of New York, with the intention ôf bringing
them hère for sale so stamped. The only act of stamping averred is
plàinly at Cincinnati, or other place without this district. The ques-
tion to be determined, therefore, is, whether when the stamping is
doné without the district, with the intent to bring the stamped arti-
cles within this district and there sell them in fraud of the public,
and such articles are accordingly brought hère and offered for sale,
any offense is Committed under section 4901, îot which a penalty can
be recovered in this district.
Tbe statute in question, though a public statute and designed to
prevent impositions upon the community, is, nevertheless, a highly
pénal one. The articles stamped may be of comparatively little
value ; yet a penalty of $100 is fixed for the stamping of each. In
thèse suits $6,000 are claimed as penalties. One half of any re-
covery in such suits may go to whomsoever ît may please to sue,
though the plaintiff hâve no spécial interest in the subject, and may
not bave sustained any actual injury. It is an action qui tara for the
use of the informed and thé government. Such pénal statutes are
always eonstrued strictly; that is, they are not to be extendedto atsts
which do not clearly corne within the plain meaning and ordinary ac-
ceptation of the words used. The offense, being created by statute;
does not extend, and cannot in such cases be eonstrued by the courts
as extending, beyond the fair meaning of the language employed in
designating the offense. Ferreti \. AtwiU, 1 Blatchf. 151, 156.
The offense under the third subdivision of section 4901 is clearly
the act of marking upon or afiSxing to any unpatented article the
word "patent," or any word importing that the same is patented, for
the purpose of deceiving the public. The intent to deceive must ac-
company thé act; but the act which is made pénal is affixing the
mark or stamp, and nothing else. The acts in this case, with the
accompanying unlawful intent, were wholly compléted at Cincinnati,
or other place without this district. The statuatory offense being
therefore complète before the articles were brought into this district,
the prescribed penalties could clearly bave been recovered under the
last clause of the statute within the district where it was thus com-
mitted.
The plaintiff, while admitting that the défendant was liablé to suit
within the district where the articles were in fact istamped, contends
that, because the articles are brought within this district and offered
for sale hère pursuant to the original intention, the plaintiff may also
sue for the penalties hère — First, because the offense, as itiselaimed,
is a continuous one, and is in effect repeated and continued within the
district where the articles are brought; and, second, because by sec"
tion 732 of the Revised Statqtes it is provided that "ail pecuûiafy
504 FEDEBAL BEPOBTEB.
penalties and forfeitures may be sued for and reeovered either in the
district where they accrue or in the district where the ofifender is
found."
1. I cannot sustain the contention that any offense under section
4901 is "committed," or "repeated," within this district, in consé-
quence of the articles being brought hère, and exposed for sale in pur-
suance of the original intention. The statute has not made pénal the
act of ofifering such falsely stamped articles for sale, or the act of
bringing them from one district to another with such intention. Had
the articles been thus stamped in Canada with the intention of bring-
ing them hère for sale, and had they then been brought hère, and put
on the market, no offense woald hâve been committed under thiâ stat-
ute, because the prohibited act would bave been done without our
jurisdiction, and the acts of bringing the articles into the country,
and offering them for sale already falsely stamped, cannot possibly
be brought within the prohibitory language of the statute. Had it
been the object of congress to make' pénal the exposure of such ar-
ticles for sale, it must be presumed that appropriate words to indicate
that intention would bave been used. Under the rule of construction
above referred to, the language of the statute cannot be thus extended
merely because the statute may be easily evaded, or because the same
mischief may be done by means of other acts not prohibited, and
•which cannot possibly be brought within the fair meaning of the stat-
uatory terms. The language of Makshall, G. J., in the case of U. S.
V. Wiltberger, 5 Wheat. 96, is specially applicable hère: "The case,"
he says, "must be a strong oneindeed which would justify a court in
departing from the plain meaning of the words, especially in a pénal
act, in search of an intention which the words themselves did not
suggest. To détermine that a case is within the intention of a stat-
ute, its language must authorize us to say so. It would be danger-
ous indeed to carry the principle that a case which is within the rea-
Bon or mischief of a statute, is within its provisions so far as to punish
a crime not enumerated in the statute, because it is of equal atrocity
or of kindred character with those which are enumerated. Ferrett v.
Atwill, 1 Blatchf. 151-156, See, also, The Saratoga, 9 Fed. Rep. 322
-325; 17. S. V. Temple, 105 U. S. 97; U. S. v. Graham, 3 Sup. Ct.
Rep. 583; Ruggles v. State, 2 Sup. Ct. Rep. 832-838; French v, FoUy,
11 Fed. Ebp. 801-804, and cases there cited.
The analogy afforded by indictments for larceny, which may be
brought in any county wherein the thief is found with the goods, is
aot applicable hère. The reason of that rule is that the légal own-
er's right to his goods is not changed by the theft; every moment of
the thief's possession of the goods is a continuation of the original
trespass, theft, or felony, amounting to a new asportation and ab-
straction. 1 Russ. Cr. 173. In its nature it is a continuons feloni-
ous appropriation of another man's property. But the crime of bur-
qlary, which includes the felonious entry of the particular locus in quo,
PENTLABQB V. EIBBT. 505
as an ingrédient in that offense, must, at common law, be prosecnfed
in the county where the entry was committed ; so, in the case of rob-
bery, it is only by statute that an indictment can be brought in an-
other county. 1 Haie, P. C. 536; Haskins v, People, 16 N. Y. 344,
where the authorities are reviewed. In the présent case, the offense
is pùrely a statutory one, and consists solely in affixing certain marks
or stamps with intent to deceive the publie. The offense may be
complète and the penalty incurred, though the articles are, in fact,
never offered for sale or known to the public. The intent to de-
ceive is doubtless continuons where the articles are offered to the
public ; but it is not that intent which is made pénal, but the aot of
stamping when accompauied by that intent. Hère that act was com-
plétée, and the "offense," therefore, whoUy "committed" without this
district. There was no act of marking or stamping within this district.
No act prohibited by the statute was committed hère. Bringing the
falsely-stamped articles hère, thojigh in pursuance of the original in-
tention, eannot, by any stretch of language, become an act of marking
within this district, and hence the "offense" was not "committed"
hère.
2. There are, doubtless, strong grounds for permitting such actions
to be brought, under the provisions of section 732 above quoted, in
districts other thau that where the offense was committed, if that
can be allowed consistently with the established rules of statutory
construction. For if after falsely stamping suèh unpatented articles
the offender, on immediately leaving the district, eannot be prosecuted
elsewhere, it will plainly be very easy in many cases to évade the
statute altogether. If, on the other hand, the défendant is liable tô
be sued for such penalties under section 732 in any one of ail the
districts in the country where he may at any time happen to be found,
great embarrassments in such suits might often arise. Controversies
under this section, so far as they hâve corne under my own observa-
tion, hâve sprung mostly out of bonafide différences in regard to the
character of the articles, whether embraced within certain patents or
not, and controversies as to the date of the patentee's rights. The
requirement, also, of the statute, making the intention to deceive the
public material, may demand examination of numerous witnesses at
the place where the acts were done ; and thèse varions considérations
might constitute possibly a sufficient reason for limiting the prosecu-
tion of offenses so highly pénal to the district where they were in fact
committed.
The language of section 4901 is not, in itsreading, merely permis-
sive. It seems to be mandatory in form — "to be recovered by suit
in any district court of the United States within whose jurisdiction
such offenses may bave been committed." The enactment of the
offense, of the penalty, of the persons who may sue, the mode of
suit, and in what district the prosecution is to be brought, are ail
connected as parts of one single enactment. In such cases, where the
506 FEDERAL BEPOBTEB.
offense is new, and the remedy presoribed, the gênerai rule bas long
been that the remedy must be sought in the précise mode and subject
to the précise limitations provided by the act which créâtes the of-
fense. The rule is foupded npon the presumed intent of the légis-
lative authority in Connecting the new offense with the particular
remedy prescribed to exclude ail other remédies.
' lii Millar v. Taylor, 4 Burr. 2305, 2323, Willes, J., says:
• "If the olïénse, and consequently the right, which arises from the prohibi-
tion be riew, no remedy or mode of proseeution can be pursued, except what
is directçd by the act. * * * if the act has prescribed the remedy for the
party grieved, and the mode of proseeution, ail other remédies and modes are
excluded. * * * jf the same act which créâtes the right, limits the time
within which prosecutions for violations of it shall be commenced, that lim-
itation cannot be dispensed with. "
In Donaldson v. Beckett, 2 Brown G. P. 129,it was lield in suoh cases
that there can be no remedy, except on the foundation of the statute
and on the terms and conditions prescribed thereby.
. In the case of JDadleyv. Mayhew, 3 N. Y. 9, SteonGj J., says, (page
15:)
"It is very clear that, when a party is confined to a statutory remedy, he
must take it as it is conferred, and that where the enforciug tribunal isspeci-
fled the désignation forms a part of tho remedy, and ail others are excluded.
ïhe rule is inapplicable, of course, where property or a right is conferred and
no remedy for its invasion is specifled; then the party may sustain his right
to protect his property in the usual manner. "
See, also, Almy v. Harris, 5 Johns. 175; McKeon v. Caherty, 3
Wend. 49é; Renwick v. Morris, 7 Hill, 575; People v. Hazard, 4
Hill, 207; People v. Hall, 80 N. Y. 117.
Again, section 733 of the Eevised Statutes is taken Verbatim from
the act of February 28, 1839, § 3, (5 St. at Large, 322.) It is a gên-
erai act applicable to a multitude of penalties and forfeitures, con-
cerning which there is no other provision in regard to the place where
the suit may be brought.
Section 4901 is taken from the act of July 8, 1870, § 39, (16 St. at
Large, 203.) This act was passed long after the gênerai act of 1839,
providing for the recovery of penalties and forfeitures in any district
where the offender might be found. The offense created by section
39 of the act of 1870 was new, and that section spécifies definitely
how and where such penalty is to be recovered. Under the rule
above stated, the particular spécification of the district wherein the
remedy is to be pursued must be interpreted as a limitation, confin-
ing the plaintiff to the district where the offense is committed.
Unless that were the intention of the clause in question, no reason
appears for its insertion at ail, since under the gênerai act of 1839,
then in force, suit might hâve been brought, if nothing had been said
about it, wherever the offender might be found. No reason appears
for applying a gênerai statutory provision in extension of the remedy
particularly designated by the act creating a new offense, which
. WINNE: V. SNOW, 607
would not apply equally in favor of sueh an extension by means of
the ordinary common-law remédies; and yet it i^ well eettled that
the latter are excluded under tbe rule of construction above referred
to, and the same rule must, therefore, be held to exclude the appli-
cation of section 732 to suits brought under section 4901.
Other sections of the act of July, 1870, furnish further support to
the construction hère given. Sections 79 and 82 of that act provide
for the recoveryof damages in "any court of compétent jurisdiction."
Section 94 provides for the reeovei-y of the penalty in any district
court where the delinquents "may réside or be found." Section 98
provides for the recovery of a penalty of $100, by action precisely
similar to the présent, in cases of copyright, "in any court of compé-
tent jurisdiction;" and the same provision is made, as respects dam-
ages and penalties, by sections 99, 100, 101, and 102. In view of
ail thèse other sections of the same statute, permitting the suits for
those penalties to be brought "wherever the défendant may be found,"
the exceptional language of section 39, providing that the suit for that
penalty is to be brought "in the district where such offense may bave
been committed," warrants the inference of a particular intent to
limit prosecutions under that section to the district where the offense
was in faet committed. If, under this construction, the statute may,
in some cases, be easily evaded, that must be set down to the explicit
and peculiar limitation of the statute itself. It is for congress to ap-
ply the remedy, if any is needed, and not for the courts to attempt
it, through a departure from the well-settled rules applicable to the
construction of pénal statutes and the remédies presented thereby.
The demurrers are sustained, and judgments thereon ordered for
the défendant, with costs.
WiNNB, Suing for Himself, as well as for the United States, v. Snow.
{DMriot Court, S. D, New York. February 11, 1884.)
1. Patents— False Mabks— Rev. St. { 4901— DBsnTBKBR— Action Q01 Tam.
An action brought by an informer for hia own beneflt and that of the United
States, under section 4901, Rev. St., for falsely stamping the Word "patented"
on an unpatented article, is an action qui tam, in which the plaintifE may prop-
erJy describe himself as bringing the action for the beneflt of himaeif and of the
United States. In such cases tho United States is not regarded as a party to
the action, and a demurrer for misjoinder of parties will not be sustained.
2. Sajie— JuRiSDrcTroN.
Such an action may be brought in the district where the offense is commit-
ted ; and the jurisdiction of the court does not dépend on the résidence of the
parties.
3. Same— PAnTiBs.
Such an action may b,e brought, under thestatute.-as well by a person sulîering
no spécial injury, as by one who ia specially dàmagéd by the dcfendant's illégal
acts. Averments of spécial damage in the complamt are, therefore, iminatèrial
508 FEDERAL EEPOBTEK.
and irrelevant; but though tliey may be stricken out on motion, tliey are not
a ground of demurrer under the New York Code of Procédure.
4. Bamb—Avekments— Evidence.
In suoh an action it is not necessary to aver or prove that tlje articles falsely
slamped were capable of being patented ; if not patentable, and if the acta al-
leged were incapable of decpiving tlie public, that is matter of défense.
Demurrer to Complaint.
W. E. Ward, for plaintiff.
Charles M. Stafford, for défendant.
Bkown, J. The complaint charges that on or about the nîneteenth
day of May, 1883, the défendant, within this district, did mark or
stamp upon 500 basket-cover fastenings, which were unpatented, the
words and figures, "Patented May 30th, July 25, 1871," importing
that they had been patented at those dates, with the intent and pur-
pose of deceiving the public. The complaint further states that the
plaintiff is the patentée of a useful improvement in basket-cover fas-
tenings, and is engaged in business in manufacturing and selling such
articles for the public ; that the defendant's acta were for the purpose
of inj aring the plaintiff in his business ; that défendant f orbade the
public the use of plaintiff's improvement, and threatened to proseeute
the persons who should use and sell it; that the plaintiff's basket-
cover fastening was better and cheaper than the defendant's and
that the plaintiff had been greatly injured in his business by the de-
fendant's wrongful acts, to the amount of |50,000; that ail of thèse
acts of the défendant were contrary to section 4901, Eev. St., whereby,
by virtue of said statute, an action had acerued to the plaintiff to de-
mand of the défendant a penalty of $100 for each of said basket covers
so falsely stamped, amounting to $50,000, for which he demanded
judgment for himself and the United States. The défendant demurs
— First, for the improper joinder of parties plaintiff; second, misjoinder
of causes of action, — one for penalty, theother for damages to the
plaintiff's business; tkird, that the court bas no jurisdiction; fourth,
that the facts stated are not suffieient to constiute a cause of action.
1. The suit is a qui tam action to recover a penalty under section
4901, one-half of which is to go to the plaintiff, and the other half to
the United States. The plaintiff, in stating that he sues "for himself
as well as the United States," atates only a légal fact apparent on
the face of the statute, and in a form long recognized as proper. In
Buch cases the United States is not regarded as a party to the action ;
the form of the title indicates only that it is a qui tam action, pros-
ecuted by an informer, to recover a statutory penalty; and the objec-
tion of misjoinder is not well taken. Cloud v. Hewitt, 3 Cranch, G. G.
199; Ferrett v. Atwill, 1 Blatchf. 151; Cole y. Smith, i Johns. 193;
Oliphant v. Salem Flouring Mills, 5 Sawy. 128.
2. The matter set np as spécial damage to the plaintiff is unneces-
sary and irrelevant. Any informer is entitled to the same reeovery
that any other person who was specially injured by the defendant's
GIANT POWDEB 00. V. 8AFETY HITEO POWDBB CO. 509
wrongful acts would be. Pentlarge v. Kirhy, ante, 501. Thîs spécial
matter, however, is plainly not stated in this complaint, as a separate
cause of action, and no relief is prayed for in référence to it. As irre-
levant matter, it might be stricken ont on motion under the New York
Code of Procédure, whicb régulâtes the practice hère in common-law
actions; but it cannot be objected to by demurrer.
3. In actions based upon this statute, tbe citizènship of the parties
is immaterial ; the action must be brought in the district where the
offense is committed. Pentlarge v. Kirhy, supra.
4. It is urged that the complaint does not state facts sufficient to
constitute a cause of action, because it does not allège that the arti;
clés stamped were capable of being patented; and the case of U. S.
V. Morris, 2 Bond, 2é; 3 Pisher, Pat. Cas. 72, is cited in support of
this view. If it appeared from the complaint itself that the articles
wereof such a nature that the public could not possibly be deceived by
the mark "patent" put upon the articles, it might be that the complaint
should be held insufi&cient; because the intent to deceive the public
is a necessary ingrédient in the offense. Beyond that, however, I
cannot go ; and in cases like the présent, where there is nothing to
indicate that the articles may not be patentable, and the public misled
by the false and deceptive stamping aHeged, I see no reason for
shielding persons who seek to impose upon the public, from the penal-
ties imposed upon them by the plain language of the law ; or for requir-
ing the plaintiff to allège, or to prove, more than the statute requires.
Any défense of the kind referred to, in so far as it bears on the in-
tent to deceive, is open to the défendant. This subject was fuUy
considered by Deady, J., in the case of Oliphant v. Salem Flouring
Mills, supra, and I fully concur with the result which he reached, hold-
ing it unnecessary to allège or prove that the article stamped was
patentable. See Walker v. Hawkhurst, 5 Blatchf . 494.
The demurrer should, therefore, be overruled; with liberty to the
défendant to answer within 20 days, on payment of the costs of the
demurrer.
GiANT PowDER Co. V. 8afbty Niteo Powdeb Co.
{Circuit Court, S. California. February 18, 1884.)
Patents— Rbissue — Whbn Only Paktiallt Inopekativs.
Whenever a patent is so far inoperative that it fails to secure ail Ihat the
patentée was, by his spécifications, entitled to claim, it is inoperative within
tbe meaning of the statute, and tbe patentée is entitled to a reissue.
Samb — Décision dp Patent-Opficb Oonclubivb Upon Collatéral Ques-
tions.
The décision of the commissioner of patents is conclusive upon ail questions
relating to the manner in which a patent was obtained, and the cou/ta can only
consider what appears upon the face of the patent.
§10 " FEDERAL BBEOBTEB.
S. Samb— Reisbtjîî'in I/ANatTAGE oy ORIOmAli.
One who, under hones't misapprehension, surrenders a valid patent, and takeg
a reissue wliich proves to be vold, ia eniitled to a reissue of the flrst patent in
the identioal language originaJly uaed.
4. Equity Pleading — Plba— Ambndment — Multipakious Issues — Dklat.
A ple^ in equity must be conflned to a single issue, unless spécial leave ia
obtained to plead double; and an amendment of a plea so as to raise a multi-
tude of issues will not generally be allowed, especially at'ter long delay. The
défendant must answer over.
Motion for Leave to File an Amended Plea.
Hall MsAllister and George Harding, for complainant,
M. A. Wheaton,- for respondent.
Before Sawïer and Sabin, JJ.
Sawyer, X., (orally.) In the case of Gîant Powder Co. v. Safety
Nitro Co., a motion for leave to file an amended plea, setting up sev-
eral distinct défenses, bas been argued in connection with the argu-
ment as to the sufficiency of the plea already filed. The Giant Pow-
der Company was the owner of original patent, No. 78,317. This
patent was surrendered and reissued as patent No. 5,619. After-
•wards, for the purpose of correcting a clérical error, patent No. 5,619
was surrendered and reissued as patent No. 5,799. A suit npon this
last patent was decided by Mr. Justice Fibld in this court, in which
it was held that the reissue was broader in its scope than the original
invention as desoribed in the original patent No. 78,317, being for a
combination of nitro-glycerine with some non-explosive absorbent
material, while the reissue embraced explosive as well as inexplosive
absorbents, and Mr. Justice Pield held that in that particular the
reissne was broader than the originally-patented invention, and for
that reason void. Oiant Powder Co. v. Cal. Vigorit P. Co. 6 Sawy.
609; [S. 0. 4 Pbd. Eep. 721.] In conséquence of this décision,
patent No. 5,799 was surrendered and reissued again in patent No.
10,367, and in patent No. 10,267 both the spécification and theclaim
are identical with those of the original patent No. 78,317, which had
before been surrendered and reissued in the patents before mentioned.
Thèse facts are set up in the plea, and it is claimed that patent
No. 10,267 is void, it being identical with the original surrendered
patent No. 78,317. That patent was surrendered as being inopera-
tive; and as a reissue can only be had where the patent is inopera-
tive, it is claimed that the original patent must hâve been held to be
wholly inoperative. I think counsel are mistaken in that proposi-
tion. A patent may be inoperative, in my judgment, when it is in-
operative in part. I do not think it must be absolutely inoperative
in its entirety. If it is inoperative so far as not to cover ail that the
party is entitled to claim, and what he is entitled to claim appears
in the spécifications, it being inoperative to that extent, I think it
would be inoperative within the meaning of the provisions of the stat-
ute, and entitle the party to a reissue, covering his entire invention.
It does not necessarily foUow that patent No. 78,317 was wholly in-
GIANT POWDEE CO. V. BAEETY NITBO POWDBB 00. 511
opéra tive, or void, or useless. I am not aware that it has everbeen
held by any court to be utterly invalid in ail its parts. It was not
even claimed at the argument that the patent, as originally issued,
was inoperative, in fact, as to the oombination of nitro-glycerine with
inexplosive absorbents.
The question of fraud in procuring the reissue, in my opinion, does
not ariae on this plea, because the question as to whether a mistake
has been innocently made in not covering by the patent ail that the
party was entitled to cover — the question whether there is a fraud in
the surrender and application for a reissue — is one of fact, for the
officers of the patent-ofBce alone to décide, and tbeir . détermination
is' conelusive in a collatéral proceeding. This court can only exam-
ine and pass upon what appears upon the face of the patent, and see
whether there is anything to indicate its invalidity, or render it void
upon its face. AU ijucstions of fact behind the patent are to be ex-
amined, heard, and conclusively determined by the commissioner of
patents./ This principle has been afidrmed oyer and over again by the
suprême <30urt.
I do not think the fact that the patent was reissued in the iden-
tiçat terms of the original patent No. 78,317 rendors it void, The
spécifications of the patent last surrendered were amended by omit-
ting the objectionable parts. Patents are constantly reissued for
portions of the spécifications and claims in the identical language of
the original patent. Each claim in its nature substantially and in
effect covers a distinct and separate invention, and is an indépendant
patent in substance and effect. It might be the subject of an inde-
pendent patent ; and if in any reissue, so far as the patents are iden-
tical, those claims are valid in the reissued patent having another or
additional valid claim, or a modified claim, or some other change in
the spécification, I do not perceive why they would not be valid in a
patent limited to' them alone. If they can ail stand together, I do
not see why a reissued patent, covering the identical claims by them-
selves, may not stand and be valid. Pa1;ents may be reissued in di-
visions. It is not necessary that ail claims in the reisaue should be
included in one patent. They are often issued in divisions,' and I
suppose that a patent might be reissued in divisions in the identical
language as to some of the claims, the changes being included in an-
other and separate division or patent; that is to say, ail claims, or
inventions, which are f ully covered and operative, may be reissued
by themselves in one division in the identical language of the orig-
inal surrendered patent, and ail other claims, on amendments to the
the spécifications, and covering the invention shown by the amended
spécifications, in another division or patent. I do not see why a part
of the original claims may not be reissued in one division in identi-
cally the same language as in the original patent, and the rest in an-
other. If this can be done without affecting the validity. of the reis-
sues, and a party finds that he has made a mistake and surrendered
512 FEDSBAL BEPOBTES.
a valid patent and obtaîned a void reisaue, I do not perceive wûy hb
may not fall back upon his old patent and hâve it reiBsued on a
newly-amended spécification embraeing that portion which is valid.
If parts which are identical are valid in connection with other parts
in a reissue, I do not perceive why they should not be valid in a re-
issue coutaining no additional matter.
In this particular class of cases it is quite extensively claimed by
the bar, I think, that the suprême and some of the circuit courts hâve
made something of a departure in some of their late décisions upon
reissues, ineluding the reissue in question. Mr. Justice Fieu) held
patent No. 5,799 to be void, vrhile several of the circuit judges at the
east held it to be valid, and the suprême court bas recently repeatedly
affirmed the principle of the décision of Mr. Justice Pield on the cir-
cuit. Where courts make a mistake, it may, very properly, be con-
ceded that a patentée may well make an honest mistake himself .
On the argument of the plea, my attention was called for the first
time to the case of Gage v. Herring, 107 U. S. 646, [S. 0. 2 Sup.
et. Eep. 824,] in which I think the principle involved in the plea is
distinctly determined. The court says :
"The Invalidtty of the new daim in the reisstie does not indeed impair the
validity of the original daim, which is repeated and separately stated in the
reissued patent. Uiider the provisions of the patent act, whenever, through
inadvertence, accident, or mistake, and without any willf ul default or intent
to defraud or mislead the public, a patentée in his spécification has claimed
more than that of which he was the original or flrst inventer or discoverer,
his patent is valid for ail that which is truly and justly his own, provided the
same is a material and substantial part of the thing patented, and deflnitely
distinguishable from the parts claimed without right; and the patentée, upon
seasonably recording in the patent-ofBce a disclaimer, in writing, of the parts
which he did not invent, or to which he has no valid claim, may maintain a
suit upon that. part which he is entitled to hold, although in a suit brought
before a disclaimer he cannot recover costs. Rev. St. §§ 4917, 4922; O'Reilly
V. Morse, 15 How. 62, 120, 121; Vance v. Campbell, 1 Black, 823. A reis-
sued patent is wlthin the letter and the spirit of thèse provisions."
If a reissued patent is within the letter and spirit of thèse provis-
ions, as stated, and "the invalidity of the new claim in the reissue
does not indeed impair the validity of the original claim, which is re-
peated and separately stated in- the reissued patent," it is not appa-
rent to my compréhension why a second reissue, embraeing the valid
claim alone of the original patent, would not be valid. I cannot,
therefore, say that the patent (No. 10,267) is void by reason of any-
thing asserted in the plea upon the grounds set forth. The plea must
therefore be overruled.
With référence to the filing of the proposed so-called amended plea,
I think it is not within the reasonable discrétion of the court to allow
it to be filed at this late day. In view of the circumstances of this
case, as they appeared before this court in the varions stages of the
proceedings, I think it would be an abuse of its discrétion to allow
the plea to be filed, if it were otherwise a proper plea. In fact, the
proposed ameûded plea sets up ail the défenses that can be made to
OIANX POWDEB 00. V. SÂFSTt NITBO POWDBB 00. 5ïS
a patent, and it would involve the trial of the whole case, with the
exception of the single question of infringement. The ôbject of a
plea, where there is some certain, single issue, requiring but little
évidence that will dispose of the whole case if sustained, is to try
that issue without putting the parties to the expense of the trial of
the case at large; and pleas are limited to a single défense or issue
unless, by permission of the court, the défendants are allowed to plead
double. If the court allows this so-called amended plea to be filed,
it would allow parties to try ail the issues in the case with the excep-
tion of the one issue as to infringement, and it would be necessary to
try the whole case on the merits by piecemeal. Besides, it cornes too
late. After this plea was originally filed it was stipulated that it
stand for an answer so far as it was available as a défense. An an-
swer and replications were filed, and the parties commenced taking
testimony. In the course of taking the testimony the solicitor for
the def«ndant ascertained the importance of having the case decided
on bis plea, provided it was good, and thought that he was at a dis-
advantage in bis then position, as on the question of infringement
he would be obliged to diselose the secrets of his composition. He
therefore moved, upon aflSdavits, to be relieved from the stipulation,
taking the plea for an answer. He claimed, among other things, to
hâve misunderstood the practice of the court. After argument, the
court, thiûking that there might be something in the plea, as this
exact point had never been decided, so far as it was aware, and, if
good, it would save the expense of a trial, relieved the party from the
stipulation, and allowed the plea to be set down for argument. It
was supposed that the exact question had never been presented before,
and when the argument was made upon the stipulation the court had
not seen the case of Gage v. Herring, supra, which, it is thought, dé-
cides the principle. I thought that there was, perhaps, something
in the plea. At ail events, I thought that it was worthy of being
carefuUy considered, for if the plea is good, and the patent absolutely
void upon its face, I saw no occasion for putting the parties to the
great expense of going to a trial of ail the issues in the case. I there-
fore set aside the stipulation, and allow the défendant to withdraw its
answer in the case, and set the plea down for a hearing. It was set
down for a hearing, and continued from time to time, until finally it
came up for argument, counsel from Philadelphia coming out to argue
the case on the validity of the plea, When the plea was called for
argument, it was found that there had been a change of solicitors,
and a^n application was made by the substituted attomey at the mo-
ment for leave to file the proposed so-called amended plea, which pré-
sents ail the issues in the case with the exception of the one issue of
infringement. I think, under the circumstances, that it would be
improper, and it would be an abuse of discrétion to allow this so-called
amended plea to be filed at this late day.
Leave to file the proposed amended plea is therefore denied,
v.l9,no.7— 33
514 rKDBBHi BBPOBTBB.
National Gai^-Bbaeb Shob Co. ». Terre Hatjtb Car & MAKtw'G
Go. and others.
{Oircuit Çour(, D, Indiana. January 30, 1884.)
1. Patents for Intentioits— Parties m Action at Law for Infbingement.
In an action at law far infringement of à patent, ail parties "wlio participate
in the infringement are liable, although some are simply aoting as offlcers of a
corporation ; ail parties who participate in a tort or trespass are liable, and a
man cannot retreat behind a corporation and escape liability for infrlngements
in vrhich he aetively participâtes.
2. Same— CoNSTRtrOTION OF Patent.
It is for the court, as a matter of law, to construe a patent, and for the jury,
as a question of f act, to détermine whether it has been inf ringed, and the amount
of damages that should be allowed.
3. Same— BUHDBN OF Proof— Damagbs.
In an infringement suit, the burden is on the plaintifE to show the amount
of damages he has sutïered ; and if he furnishes reasonably satisfactory évi-
dence on that subject, he is entitled to substantial damages, otherwise to nomi-
nal damages. .
4 Samb — Evidence of Damauk— Lioense.
On the question of damages, it is compétent fora patentée to prove the priées
at which hcenaes were granted under the patent while it was in force ; but in
order to be compétent évidence of value, the priées agreed upon must be priées
flxed with regard to the future, when there is no liability between the parties,
and the parties not being subjeet to auits are presuraed to act voluntarily,
and therefore to uiake up their minds deliberately as to what wbuld be a fa'ir
price. Such arrangements, licenaes thus granted, fées thus flxed.are compé-
tent évidence to consider in determining what the actual value of an invention
is, and what the recovery ought to be for its use.
6. 8ame — Patmbnts Madb in Sbttlbment.
It is not compétent for a patentée to prove the priées paid for infringement»
already perpetrated ; such settlements are not at ail admissible on the subject
of value.
6. Samb — Amount of Damages.
The value of an invention for which an inf ringer is liable is the value at the
time of the infringement. A man who has got a patent owns it as property,
and if anybody sees fit to infringe it he is bound to pay for its f air value ; and the
fàct that there is something elae just as good or better does notentirely destroy
its value, but may afEect it.
7. Samb— Confusion of Goods.
The doctrine of a confusion of goods has no application to asuit for infringe-
ment of a patent, especially where there is only a confusion of book-keeping
and not a confusion: of the articles themselves, the articles being incapable of
mixture.
8. Samb— CioNCBAiiMBNT — Prcddcxion of Books.
If a party shows an unwillingness to let the truth out, and keeps back facts
and the means of getting at facts, in his power, then the jury is warranted in
drawing the strongest possible inferences agalnst him, which may be drawn
from the évidence actually given in favor of the other party. But if he cornes
forward with his bopks, lurnishes ail the évidence in his power, and is fairly
candid in the matter, ûo inferences should be drawa against him, except such
as are fairly drawn from the évidence adduced.
9. 8ame— Record of Patent— Notice.
Every one is bound to take notice of the existence of a patent, and of the
rights of parties under it ; like the record of a deed to real estate, the record
of a patent at Washington is notice thereof to ail the world.
Action for Da.mage8 for Infringement.
NAT. OAB-BBAEK SBOS OO.V. ÏBBRE HAUTS CAB & UAMU^'a 00. 515.
Banning & Banning, for plaintiff.
Claypool d Ketcham, for défendants.
Woods, J., (charging jury.) This is an action by the plaintiff
against the défendants claiming damages for the alleged infringement
of a patent granted to James Bing, October 6, 1863, for an improve-
ment in car-brake shoes. The burden of proof is npon the plaintifif
to show the faots, eo far as they are material, alleged in the corn'
plaint, — tbat it had a patent; that the défendants infringed it; and
the amount of damages that it has suflfered by reason of the infringe-
ment. The défendants are three — the car company and two individ-
uals who are shown to be officers of the company. The action is in
the form of a suit in trespass on the case, and conseqnently if ail the
défendants hâve participated in the infringement they are ail liable,
though the individuals were acting siraply as ofScers of the company
in doing it. AU parties who take part in a tort or trespass are lia-
ble. A man cannot retreat behind a corporation, and escape liabil-
ity for a tort in which he actively participâtes. So there is no ques-
tion, probably, in the case but that ail the défendants are liable, if
any. There is no dispute that the plaintiff has a patent. The pat-
ent itself has been put in évidence, and is conclusive of the fact that
the patent-office issued it to Bing, under whom the plaintiff claims.
It is for the court to tell you what the olaim of the party is in his
patent, and what he acquired by the patent. It isfor you, as a ques-
tion of fact, to détermine whether the défendants hâve, by anything
that they hâve made, infringed the patent of the plaintiff.
The plaintiff in bis patent makes two claims. The first is for the
two parts of the brake, the shoe and the sole, adjusted together in a
particular way described, for the pufpose of producing a rotary mo-
tion. To this claim the rotary motion is essential, and any imple-
ment which does not produce tbe rotary motion is not an infringe-
ment of that claim of the patent. But there being two claims in the
patent, an implement mayinfringe one and not the other; and if the
défendants bave manufaetured an article which infringes either claim,
the plaintiff is entitled to recover in the action for that infringe-
ment ; and if it infringes both claims, of course the plaintiff is entitled
to recover. I instruct you, on the authority of Judge Dbummon»,
who is my of&eial superior in this circuit, as well as upon my own
judgment of the law of the case, and of the proper interprétation of
the patent, that the second olaim does not embrace the idea of rotary
motion, and may be violated by an implement which is not designed
to produce, and does not in fact produce, the rotary motion. The
second claim is simply for a combination of the two parts of the brake
already mentioned, — the shoe and sole, — and of the devis and boit
made in the'substantial form described in the patent; but it is not
necessary, as I hâve said, that it shall be so made aâ to produce ro-
tary motion. It is simply for the combination of thèse parts, in sub-
stantially the way they are described, without référence to rotary mo-
516 FBDBBAL BEPOKTBB.
lion, for tlie accomplishment of whatever benefits will resuit from the
combination of the parts in that way. If the benefit be the ease in
taking apart and putting together, or taking out old pièces and put-
ting in new, or any other benefit that results from that combination,
■whether described in the letters patent or not, the inventer has the
. right to the benefits of the combination that he has thus produced.
As already stated, it is for you to détermine, as a question of fact,
■whether the implement manufaetured by the défendants, which I be-
lieve is ooncedod to be in the form of this red model which I take in
my hands, designated "J. S.," does infringe the patent of the plain-
tiff in respect to either claim, — the combination for rotary motion,
and the gênerai combination of the four parts, without référence to
rotary motion. Now, it is argued by one side that this pièce resting
Bquarely down upon the shoe, and not pushed forward by this toe, will
not produce rotary motion, and therefore does not violate this patent
in respect to the claim for rotary motion. On the other hand, it is
argued that this will produce rotary motion on the principle the plain-
tiff contends for. I leave that to you as a question of fact. If this
implement, constructed in this way, will produce the rotary motion to
Bome extent, — it may not be to the full extent of a model constructed
in the form of the patent, — it is a violation of the first claim of the
patent. If it will not produce rotary motion at ail, then it is uot a
violation of that claim.
The next question is whether this model is substantially a combi-
nation of the same parts as are included in the second claim of Bing's
patent. In order that there be an infringement, it is not necessary
that the parts be exactly alike. If they are substantially the same
in construction, and produce substantially the same resuit in sub-
stantially the same manner, it is an infringement. It takes more
than a mère différence in form to escape an infringement. If a man
has procured a patent — a combination patent — consisting of certain
parts, one of which, for instance, is a devis like that, coming down
in two arms upon the outside of the ears of the brake head, the ques-
tion in this case is whether the substitution of a single strap like this
escapes that patent. If this strap was a thing already known to
mechanics as something that, in this connection, would produce sub-
stantially the same resuit as the devis, in the same connection, — a
mère substitution of one thing that is équivalent to the other, — it
then must be treated as an infringement. The défendants do not es-
cape if this is substantially the same, and was a thing known to
mechanics already, and substituted merely to produce substantially
the same resuit as the devis; and if not involving any invention, it is a
raere meehanioal équivalent. Such a change does not enable a party
to escape liability for infringement. The question is for you. Goun-
sel hâve argued it before you and I shall not enlarge upon it. It is
for you to say whether there is a substantial change in anything
more than mère form from that to this. If there is no substantial
HAT. OAB-BBAEE SHOB CO. V. TEBBB HAUTE OAB & MANDF'q 00. 517
change, no change except in form, then this shoald be treated as an
infringement of the plaintiff's second claim.
Considérable bas beeu said in argument, and some évidence ad-
dueed, in référence to décisions made by Judge Dbummond, of this cir-
cuit, that a certain brake-sboe used by the Illinois Central and the
Lake Shore railroads, which are claimed to be substantially identical,
even in form, -with this model, are an infringement of the plaintiff's
patent. I say to you that such décisions bave been made; but they
were décisions in particular cases, made, of course, with référence
to the évidence adduced in those cases ; and while they are entitled to
weight upon your minds, they are not absolutely conclusive upon you.
I leave it to you, as the law leaves it, a question of fact whether this
is an infringement of that; that is, whether the brake-shoe repre-
sented by this model is an infringement of the Bing patent. You
should hold that it is, unless there is some departure more than in
mère form ; that is, unless the resuit accomplished by this is by a sub-
stantially différent contrivance, operating in a substantially différent
way from the Bing brake-shoe. If you find that the implement made
by the défendants, of which this is coneeded to be a model, is an
infringement of the plaintiff's patent, then will arise the question,
which counsel bave more earnestly argued before you, and which is
for you, perhaps, the more important question in the case — what
damages shall be awarded? The burden of proof is upon the plaintiff
to show the amount of damages that he bas suffered, and to fumish
the jury reasonably satisfaotory évidence to enable them to reach a
conclusion on that subject; and, if the plaintiff bas furnished you
Ihat proof, it is your duty to award him substantial damages. If
there bas been an infringement, he is entitled to nominal damages
anyway ; but if the évidence shows that the patent is of real value,
then he is entitled to substantial damages, according to the proof.
As a gênerai .proposition, the weight that testimony shall bave is a
question for the jury; but the court may lay down gênerai principles
which will enable the jury to understand how the testimony should be
weighed. I instruct you that it is compétent for a patentée, in order
to enable the jury to measure bis damages, to prove contract priées
at which licenses had been granted nnder the patent while it was in
force, but that it is not compétent for him to prove the priées paid
for infringements ; that is to say, payments made in settlement of
infringements already perpetrated. In order to be compétent évi-
dence of value, the priées agreed upon must bave been fixed with
regard to future use, when, there being no liability between the par-
ties, they are presumed, on both sides, to hâve aeted voluntarily, and
therefore to bave made up their minds deliberately as to what was
a fair price. Such arrangements, licenses thus granted, fées thus
fixed, are compétent évidence to consider in determining what the
actual value of an invention is, and what the recovery ought to be for
its use. But settlements for past transactions, where the parties are
518 , ; FEDEBAL KEPORTEB.
liable to suit if they do not pay, I instruct you, are not admissible as
évidence for the plaintiff upou the subject of value.
Now, there is in évidence the déposition of Mr. Shaw, and counsel
hâve discussed before you the vs^eight that it should hâve. ïbey dis-
pute whether Mr. Shaw, in this déposition, bas spoken about payments
made for past use, or a price agreed upon for future use, or payments
partly for past and partly for future uses. I leave that to you. The
testimony is before you, and it is for you to say what it means, and
what effect you will give it in this respect,
Other évidence bas been introduced as to the value of the patented
brake-shoe as compared with others, and some question ia made of
what the comparison should be. The plaintilï's counsel insists that
no comparison shall be made with any implement that had not been
in use, or been invented, — if it was a patented implement, — before
the patent sued upou was issued. I am not able to agrée fuUy with
that position. The action being for damages, (not profits,) I suppose
the défendants are liable — if they are liable for anything — for the
value of the invention at the time they appropriated it. A patent
issued on a particular day for a parfcieular contrivanee, might, with
référence to the business of the community, and the uses to which it
could be put, be worth a given sum on that day and at .that time.
If it was the only contrivanee that could be used to accomplish the
purpose for which it was adapted, it would of course constitute a
monopoly, and would command the market for whatever price should
be fixed upon it. If shortly after it was invented and put into use
some new contrivanee, entirely différent, and not infringing it in any
respect, but useful for accomplishing the same purpose, should be
invented and brought into use, it is évident that compétition would
arise, and the first patent, instead of then being the sole occupant of
the field, would hâve to meet the compétition of the new, and might
not be worth so much as when it was first produced. I think the jury
hâve the right — and I so instruct you — to look to the facts as they
existed at the time of the infringement. If the patent was useful
when invented, and was an improvement of actual value over what
then existed, the fact that something else was invented afterwards
that was better than it, would not take away its entire value, so that
the one who should prefer to use it or manufacture it could say, "I
shall pay nothing for that beeause I might hâve taken something bet-
ter." A man who bas a patent owns it as property, and if anybody
sees fit to infringe be is bound to pay for its fair valuej and the fact
that there may be something else just as good as that or better does
not destroy its value, but it may affeot your judgment of what the
actual value is. The fact that this company chose to make this im-
plement, with the combined parts, — that is, if you find those combined
parts are an infringement of this patent, — is conclusive upon the Com-
pany that they regarded it as a valuable instrument, thus combined,
and its actual value in use, under the circumstances existing at the
NÂT. OAB-BBA.KE SBOE CO. V. TEBRE HAUTE CAB & MANDf'Q 00. 519
time, the value of that combinaiion, whîch oonstitutes the patent,
should be awarded to the plaintiff in damages; but the existence of
thèse other implements, patented or unpatented, is a matter that you
hâve a right to consider in arriving at what your judgment ôf its
actual value shall be. Of course, if the rival itnplements are pitt-
ented, the existence of them could. hâve no effôot, or but little effect,
upon the value of the invention in suit, exoopt as they furnished com-
pétition in the market. If there existed some contrivance that was
not patented at ail, or that was free to everybody, whioh subserved
substantially the same purpose, that might still further in your minds
depreciate the value of this; but the mère fact that such a thing did
exist would not destroy entirely, and could only be treated as modi-
fying, the value of this at the time. In this connection I will refer to
a point to which counsel bave calledmy attention. It is claimed by
plaintiff's counsel that the burden of proof is on the défendants to
show that those implements which were brought forward are free if
they want to claim the benefits of them as free implements. If they
are patented, then of course the parties resorting to them would hâve
to pay royalty for their use, and if they chose to go to this inptead,
they should pay royalty on this, the fair royalty, whatever it is. But
counsel for défendants hâve asked me to say to you, that if, during
the examination of the witnesses, it was conceded by the counsel for
the plaintiff that any one of thèse implements was not patented, you
hâve a right to accept that concession and treat it as proof of the'
fact that that particular one was not patented; and they claim that
the one which bas been called or designated as the réversible sole
was admitted by counsel for the plaintiff not to be covered by any
patent, — not to hâve been patented, — and therefore you are entitled
to treat that as an unpatented implement; and so far as the exist-
ence of that in the market could hâve affected the fair value of this,
you should consider it as a free instrument. I instruct you that a
concession made by counsel may be treated by the jury as a fact
against the party whose counsel made the concession.
There is one other point that I will instruct you about. In his
opening statement the plaintiff's counsel claimed to you that if he
made proof that thèse défendants constructed a brake which was a
violation of his client's patent, and showed that they had constructed a
certain number of brakes altogether, ^^he burden of proof would then
fall upon the défendants to show just how many were constructed after
the form of the Bing patent; and that unless they offered that proof
you should find that ail made by them were constructed in that way,
on the principle of the confusion of goods ; that is, that a party who
mixes his goods with another man's, so that they cannot be separated,
is liable to lose his own goods with those that he commingles with
them. That rule does not apply in this case, for the manifest rea-
son that whenever you go and look at a car you can tell what brake
is on it. If there is any confusion, it is confusion in the book-keep-
520 fEDEBAL BEPOfiTEB.
ing, and not of the goods. The brakes could not be mixed ; one brakti
is always separable from another; and the burden is upon the plain-
tifE to show how many articles were made in infringement of its patent ;
and the plaintiff is entitled to recover for the infringement of only
such number as upon the évidence you are satisfied were made by the
défendants. It is only in a case of this kind, — and I do not mean to in-
timate that there is any cause for invoking the rule hère; I leave
that solely to you, as you are the judges of questions of fact. If a
party shows an unwillingness to let the trath out, and keeps back
facts, and the means of getting at facts in his power, then the jury
is warranted in drawing the strongest possible inferences which may
be drawn from the évidence actually given in favor of the other party;
but further than this, there is no doctrine that can hâve any applica-
bility in this case, and I do not say that this doctrine is applicable ; I do
not say to you that the défendants hâve manifested any disposition
to keep back any facts in their power. If, when they made thèse im-
plements, they actually knew they were violating somebody else's
patent, and purposely omitted keeping any record of how many vio-
lations were perpetrated, then you would be entitled to draw«the
strongest inferences against them, if there were any évidence of that
fact. But if they hâve brought forward their books, and furnished
ail the évidence in their power, and hâve been fairly candid in the
matter, as muoh so as men may reasonably be expected to be when
' their interests are heavily at stake, you would not be justified in draw-
ing any inferences, other than such as may fairly be drawn from the
évidence adduced. In référence to this subject of knowledge of the
patent, I say to you that every one is bound to take notice of the exist-
ence of a patent, and the rights of parties under it, and is held re-
sponsible to pay for every infringement that he actually perpétrâtes,
just as if he did know it. It is like the record of a deed; the record
of patents at Washington is notice to every one, just as your title
deeds on the records of the proper county are notice to ail the world
of your title. But, while a ncian is held to bave this oonstructive
knowledge, he may be in actual ignorance of the fact ; and so if thèse
défendants were actuaUy ignorant of the existence of this patent at
the time they made the implements which are claimed to be an in-
fringement, they should not be deemed subject to criticism or reproof
because they hâve come hère with their books in such shape that
they cannot tell from their books what infringements they did com-
mit. It -is only when a man oonsoiously does wrong, and so does it
as to conceal the facts, that he is subject to such criticism and to
this harsh rule of évidence.
DUNOAN V. SHAW. 521
DxJNOAN V. Shaw and others.
{District Court, 8. D. New York. February 7, 1884,)
1. Shippino— Sbamam's Wasbs— Advaiîcb Note— DiscHàBGE aiter Negotia-
TiON— Indorseb — Rbv. Bt. } 4534.
Where an advance note is given upon the sliipment of a seaman for a voyage,
and it is transferred to a bonafide indorsee, under section 4534, the latter" may
recover of the owners of the vessel the amount thereof, notwithstandlng the
seaman's dischargo by the master before sailing, and notwithstandlng tbat thu
note contained the proviso that the seaman " be duly earning bis wages." Qy
giving the advance security, the master under the statute incura tlie risk, as
respects a bona flde indorsee, of the seaman's discharge before the vessel sails.
2. Samb— Casb Btatbd.
Where the shipping commissioner, at the request of the master, gave such
an advance security to the seaman shipped by him, with the consent of tho
master, the master having full opportunity previously for ascertaining the Ijt-
neas of the seaman, and the master subsequently discharged the seamcn by
reason of drunkenness on the evening preceding the sailing of the ship, and
the latter act net being sufflcient ground of discharge by the maratine law,
held, that the master was not entitled as against the indorsee of the security to
allège the gênerai unâtness of the seaman of which he had previously mëans
of knowledge; that the security was valid, and could be enforced by the in-
dorsee; and that the shipping "commissioner being obllged to pay it, could,
therefore, recover the amount in an action against the owners. JJeld, alao,
that the shipping commissioner, having defended lu a former action against
him on the note, without notice to the présent défendants, was not entitled to
recover against them the costs of the former suit.
In Admiralty.
Benedict, Taft ê Benedict, for libelant.
Alexander é Aah, for respondents.
Brown, J. This libel was brought to recover for moneys paid by
the libelant upon an advance note of $60, dated December 26, 1877,
and given for two months' advance wages to the cook of the ship S.
Hignett. The libelant was then, and is now, United States shipping
commissioner at this port. His deputy, at the request of the captain
of the ship, procured a cook for the ship, who signed the shipping
articles ; and the deputy at the same time, as requested by the captain,
signed the advance note in the following form :
"Seaman^ s Advance Note.
"New York, December 26, 1877.
"Three days after the final departure o£ the ship Sarah Hignett from New
York, for Calcutta, I promise to pay Joseph Harley, or his order, sixty (60)
dollars, provided he is then duly earning his wages.
"$60. ÏRED 0. DuNOAN, Dep'y U. S. Ship'g Com'r."
The cook had been employed upon the ship for two weeks previous,
with the understanding on the part of the captain that he would be
shipped for the voyage. On the moming of the day that the ship
sailed, the captain, being dissatisfied through évidence of the cook's
drunkenness, determined not to allow him to proceed on the voyage,
called upon the shipping commissioner, discharged the cook, and pro-
622 FEDEBAL SEPOBTEB.
cured another in hîs stead. The steward had previously indorsed and
transferred the note to one Weinhold, acknowled^ed receipt of $60
thereon, and directed payment of the note to him or bearer. Wein-
hold, shortly after the vessel sailed, commenced suit upon this note
against the commissioner and deputy commisaioner in one of the city
courts, and recovered judgment thereon, with costs. This judgment
was paid by the libelant, who thereupon sues the owners of the ship,
as for money paid at their request. Though the judgment was in
form recovered against the deputy alone, as the deputy in fact acted
on behalf of the shipping commissioner, and the latter bas adopted
Lis acts in that respect and paid the judgment, he is entitled to sue
for reimbnr sèment.
I hâve no doubt, upon the évidence, that the steward was, on the
whole, an unfit person for the voyage. During the two weeks before
the day of sailing, the master had, however, abundant opportunity to
observe the steward's gênerai unfitness. He knew that this steward
was to be shipped by the shipping commissioner, and the latter acted
at the master's request in proonring the shipping articles to be signed
by the cook and in giving the advànce note. The captain and owners
became bound; therefore, by that engagement, and by the advance se-
curity given on account of it, in pursuanee of sections 4532, 4534, Eev.
St. ; they could not allège previous unfitness as a défense against that
obligation. By the section last named, it is provided that "if the sea-
man sails in the vessel from the port of departure mentioned in the
Becurity, and is then duly earning bis wages, or is previonsly dis-
charged with consent of the mastei', but not otherwise, the person dis-
counting the security may, ten days after the departure of the vessel
from the port of departure mentioned in the security, sue fur and re-
celer the amount promised in the security, with costs, either from the
owner or any agent who bas drawn or authorized the drawing of
the security." By this section, it will be perceived, a recovery upon a
note may be had not only if the seaman be duly earning his wages,
but àlso in case he has been previously discharged with the consent
of the master. The necessary efifect of this provision is that a master
who gives, or causes to be given, an advance security, for a seaman's
wages, thereby incurs in favor of an indorsee ail the risk of the sea-
man's discharge within a period of 10 days. It is not necessary to
détermine whether the liability would still exist where the discharge
was for Bome gross misconduct on the seaman's part, such as, by the
maritime law, would clearly be good ground for immédiate discharge ;
since in this case the only act alleged after the seaman was shippéd
was a single drunken spree on. the evening before the ship sailed,
which alone is not a sufficient ground for such a discharge.
The note \n this case contained the condition, "provided he [the
seaman] isthen duly earning his wages." As the seaman at that
time was r;ot earning his wages, had the right of recovery upon the
note rested merely upon the prdinary rules of law, plainly no recovery
QoyE V. JUDSON. 528
could hâve been had, bécause the condition was not coûiplîed with.
But it is clear that upon such a note the right of recovery is not to be
determined by ordinary légal rules; eince the statutè is explicit, that
the peraon discounting the security may recover the amoant promised
by the security, with costs, if the seaman bas been previously dis-
charged with the consent of the master. The seaman in this case
clearly was so discharged, without sufficient new cause arising after
he was shipped; and the person who disoounted the security had,
therefore, a statutory right to recover the amonnt mentioned in it,
not by force of the terms of the note, but by force of the statute.
The libelant, when sued, did not, give notice to the respondents.
This, however, is immaterial, since the judgment itself is regarded as
immaterial, hère. Being liable to an indorsee, under the statute for
the amount mentioned in the security, as an agent for the owners,
who had authorized the drawiiig of the security, the libelant might
hâve paid it without suit ; and upon such payment he would hâve be-
come entitled to reimbursement from the respondents as principals,
without référence to any judgment.
The libelant is, therefore, entitled to recover the sum of $60, with
interest, from the time of payment, together with costs in this court.
Not having given notice of the sait in the city court to the respond-
ents, he is not entitled to recover of the latter the costs in that
court.
GovB V. JuDSON and another.
{Diêiriet Court, 8. D. New York. Februaiy 8, 1884.)
Bheppuîg — Sbamen— Shipping Aktiolbs — Dischàboe — Extra. Wages — Section
4582.
An American seaman discharged from an American vessel in a foreign port,
because the captain "hasnofunda topay andconldsail nofurther," will fie
deemed discharged with hig own consent within the meaning and equity of sec-
tion 4582, which was designed to furnish the seaman, in such cases, with means
of retnm to his own oountry; and no consul being found in the foreign port
nor extra wagen paid there, as required, the seaman may maintain an action in.
admiralty on his return, against the owners, for his two months' extra pay.
In Admiralty.
J. A, Hyland, for libelant.
E. Seymour, for Sturges, one of the respondents.
Bbowk, J. The libelant, an American seaman, în May, 1879,
shipped on board the American bark Rocket, then lying at Newcastle,
Australia, as first mate, for a voyage to the port of Saigow, Goohin
China; thence to such ports as the master might direût, and thence
to the United States. The libelant sailed from Newcastle, acting
as first mate, and the bark arrived at Saigow in September of the
same year. The crew then wanted to be discharged on the ground
g 24 FBDEBAL BBPOBTEB.
of too much pumpîng, and on the tenth of September ail were dia-
charged by the captain, ineluding the libelant; the vessel being then
unseaworthy, and the captain stating that "there were no funds to
pay with, and that she could sail no further." The libelant at the
time demanded extra pay, and to go before the consul, but was told
by the captain that there was no consul there; and the libelant,
upon inquiry, was unable to find any consul; and only wages up to the
time of diboharge were paid by the master. As the claim for extra
wages is not founded on the shipping articles, the formai defects in
their certification and acknowledgment are immaterial. Dustin v.
Marray, 5 Ben. 10. Under section 4582, if a seamau be dischargcd
in a foreign port, with his own consent, three months' pay is required
to be paid to the consul, two-thirds of which, by section 4584, are
payable to the seaman on engaging his return to the United States.
It has been repeatedly held, in this and other courts, that upon such
a discharge, if the payment is not made to the consul, the seaman
may by suit recover the sum to which he is entitled. The Hermon,
1 Low. 515; Wells v. Meldrun, Blatchf. & H. 344; The Blohm, 1
Ben. 228; The Caroline E. Kelly, 2 khh. (U. S.) 160; Coffin v. Weld,
2 Low. 81. In the case of Hoffman v. Yarrington, 1 Low. 168, it was
held that, under the provisions of the act of August 18, 1856, (Eev.
St. § 4583,) extra wages will not be required where the vessel has
been condemned as unfit for service from sea-damage arising during
the voyage. In the présent case there is no évidence that the vessel
had been condemned as unfit for service.
It is objected that the évidence shows that the discharge of the
libelant was not "with his own consent." What the libelant testi-
fies on that subject is, "My discharge there was not my voluntary
act, it was compulsory; by compulsion, I mean the captain told me
there was no funds to pay, and could sail no further; I requested
the captain to find a consul," etc. This évidence does not show that
the libelant's discharge was not, under the circumstance which he
explains, "with his own consent," within the meaning of the statute.
His discharge was evidently "with his own consent," although that
consent was constrained and rendered necessary under the oiroum-
stances, and, in that sensé, compulsory, becausè the captain had no
funds to pay, and could sail no further ; and such duress will not de-
prive him of his right to extra pay. Bâtes v. Seabury, 1 Spr. 433.
The discharge not being within the exception of section 4583, the
'libelant's claim is evidently withinr the equity of the statute and its
intention to provide American seamen with the means pf return to
this country; and he is therefore, I think, entitled to a decree for
twQ months* pay, amounting to $80, with interest from the time of
jaiing the libel, September 7i 1881, making $91.60, with costs.
BAY V. ONE BLOOÊ OF UABBLB. 525
Ray V. One Blook op Marbus.
{Diitriet Court, S. D. New York. January 28, 1884.)
Dbmurragb — Bill of Lading— Rbadiness to Dischakoe.
Where the bill of lading for a block of marble weigbing seven tons provided
that it should be dishargâ by the receiver within six hours after written notice
of the master's readiness to'deliver it, or pay demurrage, £15 per Aa.y, held,
that the shlp was bound to afEord reasonable and customary facilities for the
discharge; and the receiver being prepared to move the vessel some 250 feet io
the usual place of discharge at his own expense, as was usual, and the mate,
in the absence of the captain, having repeatedly ref used to permit the vessel to
be thus moved, partly for the reason that she had not her anchors aboard, held,
that she was not in readiness to deliver within the meaning of the bill of lading,
and could not recover during the time of such refusaL
Action for Demurrage.
A. J. Heath, for libelant.
W. W. Goodrich, for olaimant.
Bbown, J. This action was brotight to recover demurrage for delay
in the discharge of a block of marble weigbing about seven tons. Tt)e
bill of lading oontained the foUowing clause:
"The marble to be discharged lu New York, at the expense and risk of the
receiver, six hours after written notice being given by the master that he is
ready to deliver the same, or to pay demurrage at the rate of fif teen pounds
sterling per running day. "
To discharge her gênerai cargo the vessel went to Coe's stores and
lay along-side a bulkhead, at right angles with the line of the pier,
ïiear the end of which a permanent derrick wa& erected, aud which
was the nsual and chief place in this city for the discharge of blocks
of marble, The vessel was only about 250 feet distant from this der-
rick. The consignée was notified of readiness to discharge by a
postal-card, mailed to him on a Friday forenoon, and which was re-
ceived at his ofSce at about 5 p. u. This was too late to be a valid
notice for that day. The consignée had previously engaged Mr, Smith,
the proprietor of the marble yard and derrick close by, to Unlode the
marble as soon as the vessel was ready. Mr. Smith had previously,
on Friday, sent his son to the vessel to arrange to hâve her bauled to
the derrick, 260 feet further along the bulkhead ànd piei, ia order to
discharge the marble. The captain was absent from the vessel, and
the mate declined to say anything on the subject in his absence. It
was a usual and customary thing for vessels discharging other cargo
near by, and also having marble aboard, to discharge the marble at
this slip, and to be bauled along-side the derrick by Mr. Smith's men
for the purpose of quick discharge ; and vessels waiting to discharge
marble were usually bauled along-side the derrick in turn by Mr.
Smith's men. On Saturday morning the consignée again went to the
vessel with Mr. Smith, or his son, and again requested permission to
move the vessel to the derrick, and offered sufiBcient men to move her
526 FEDEBÀL BBPOSTSB.
at once. The captain was again absent, and the mate declîned to do
anything. They remained there till near noon, and the captain not
appearing, they went away. The day was very stormy, and no re-
moval of the block ot marble could safely hâve been made by the use
of shears. On Monday morning, the vessel being in readiness to
proceed to Hunter'à Point to load, procured a tug for that purpoae,
and in passing ont of the slip stopped a short time at the derrick, where
the block -was speedily discharged by Mr. Smith, and the vessel then
proceeded on her way. She now claims three days' demurrage.
Upon the facts stated the daim of demurrage seems to me desti-
tute of any equity. Had the vessel got her spare anchor and chains
aboard on Friday or Satiirday and been then really ready to move,
there is no reason to suppose any refusai would hâve been made to
the request to suffer her to be hauled along-side the derrick for the
purpose of discharging the marble. The request was a reasonable
one, and I am satisfied the moving of the ship would hâve been at-
tended by no difficulty or danger. The condition of the bill of lad-
ing, requiring removal of the marble within the short time of six hours
after the vessel was ready to disoharge, imposed on the captain at
least the duty of permitting her to be hauled in the usual manner
and at the consignee's expense to a place where the discharge could
be made expeditiously; Upon an agreement for discharge in so short
a time, it must be implied that the ship would accède to any reason-
able and customary facility for discharging. This was twice pro-
posed to the vessel and twice refused, the captain not being présent
to auswer, though it was business hours and he was long waited for.
The mate's answer.that the vessel was not ready to move on account
of the spare anehor and chains whieh were still on shore, shows that
the vessel waa not in fact "ready to discharge" the marble within the
meaning of the bill of lading, because she was not ready to be moved
the short distance of 250 feet, which the consignée had the reason-
able and customary right to hâve her moved at bis own expense. On
Monday she had got her anchors aboard and was then ready, and she
then proceeded to the derrick and discharged the block with no sub-
stantial détention k I think it is olear that she did not in fact sus-
tain any détention through any aots of the consignée; and the libel
should be dismissed, with costs.
THE VADERliAND. §^%
The Vaderland, etc.
{Dittriet Coti/rt, 8. D. New York. Decembet 29, 1888.)
AnMiRAiiTT Pbactick — New Triai,— Appbal, / ■
After a hearing In an admlralty cause in this court, and a décision rendered
npon complicated questions of law and fact, the cause should not be re-
opened and a new trial had for tlie introduction of further évidence in tliis
court, where there does not appear to hâve been any mistafce or , misapprelien-
sion in regard to ttie évidence taken and the facts proved ; such relief should
be sought upon appeal to the circuit, where tlie additional facts may be proved
as a matter of right.
In Admiralty.
Bodman é Adams aaà R. D. Benedict, for Wolff & Co.
Edward S. Hubbe and John E. Parsons, for steam-ship company.
Bbown, J. Upon the motion for a rehearing in the above case,
(18 Fbd. Eep. 733,) it does not appear to the court upon the évi-
dence taken that any error was committed in holding the white dam-
age to be within the exception of the bill of lading under the term
"rust," in the absence of any évidence of the restriction of the mean-
ing of that word by commercial usage to the rust of iron. If the
court is in error in that respect, an appeal to the circuit court is the
appropriate remedy. So far as the supposed error of the court rests
upon the alleged commercial use of the word "rust" in a restricted
sensé, if such restricted use oan be, proved through further évidence,
that error can also be corrected on appeal by the introduction of the
appropriate testimony to prove the fact ; and relief must be sought in
that manner, and not by a rehearing, or by an opening of the cause
for further évidence on a new tri^il in this court. The court, bçing
unable from the testimony to uni satisfactorily what was the actual
cause of the white damage, or by whose fault it arose, was bound to ex-
amine and consider the teijms of the bill of lading. The failure of
counsel on both sides to aid the court by any considération of the
meaning of the word "rust," did not relieve the court îrorii this duty.
If any actual misapprehension or mistake in regard to the facts
proved had appeared to hâve been committed, the court would gladïy
seek to correct it ; but that does not appear.
According to the settled practice, therefore, the relief desired should
be sought upon an appeal to the circuit court; and as, such p,ppeal
would, doubtless, be taken by one sida or the other, in any event, thç
final disposition of the cause will in fact be expedited by fjpllowîng
the usual practice; and the motion for a rehearing should, be dènied.
528 rSDEBAL BËFOBT£B.
The EtviNB.
(Dittriet Oaurt, 8. D. New York. Pebruary 11, 1884.)
Shipping — Sbambn— SmppiNG Abtiolbs — EvroEircK.
Though sUpping articles may be attacked by the seamen, and shown by
paroi to be iucorrect, fraudulent, or void; yet, in case oî dispute as to the
amount o£ wages agreed on, the shipping articles will control, the seaman
being compétent to bind himself thereby, unless the articles are shown to bo
invalld by a reasonable and satisfactory prépondérance of évidence.
In Admiralty.
Beehe é WUcox, for libelant.
Jas. K, mil and Wing â Shoudy, for claimants.
Brown, J. I hâve no doubt that the shipping articles of July 31,
1883, were signed by the libelant; the handwriting is adtnitted by the
libelant to be like his, and a comparison with other signatures of bis
leaves, I think, no question on that point. Thèse articles fis the rate
of wages at $40 per month. Shipping articles are required to be
Bigned under section 4520; and though their correetness may be at-
tacked, and though they may be shown by paroi to be incorrect,
frauduleût, or vôid, (^Tke Cypress, Blatchf. & H. 83; Pagev.Shejfield,
2 Curt. 377, 381,) unless this be satisfactorily established, the sea-
man will be held bound by the terms presoribed in them. The At-
lantic, Abb. Adm. 451 ; Slocum v. Swift, 2 Low. 212 ; Wïllard v. Dorr,
3 Mason, 161, 169. The intention of the master to pay but $40 per
month is clear, not only from his own testimony, but from that of
other witnesses. The testimony of the libelant and of other witnesses
who corroborate him, that he declined to ship for less than $45 per
month, produces no little embarrassment in the testimony; and in
such a case the original articles, as they stand, must control. There
is no such clear and satisfactory proof of either fraud or mistake as
would justify the court in disregarding them.
The évidence as to the articles signed at Fernandina is equally
conflicting. It is unfortunate that the original document is not pro-
duced by one of the parties. The certified copy could not furnish
any information by inspection as to whether the original articles had
been altered from $45 to $40 per month. The certified copy of the
articles is made compétent évidence by section 4575, and the burden
therefore seems to be upon the libelant to prove that it is incorrect.
The original articles, however, signed in New York, and bearing no
marks of altération, give the libelant's wages as $40 only; and thèse
articles werè designed to cover the whole period of the libelant's serv-
ices. On the whole, I think this original must be héld to be con-
trolling, and that the libelant should be entitled to a decree at the
rate of $40 per month only.
THE GARDBN CITY, 529
The Gaedën City, etc.
(District Court, 8. D. New York. January 31, 1884.)
1. COLMSION— RrVBR AND HaBBOB NAVIGATION — RiGHT OP "WaT.
A steamer meeting another in the âfth situation, and bound to keep out of
her way, — if able to do so through stopping and bacliing, — has no right to go to
the left and attempt to cross the bows of the other when there is not sufflcient
time or space to pass in that manner without a collision, unless the other ves-
sel cither stops or changes its course ; the latter has the right of way, and the
right to proeeed on her course without obstruction.
2. SaMB— SiGNALS— TiMEI.T NoTICE.
In river and harbor navigation, although for good reason a vessel may, un-
dèr the inspectors' rules, signal that she will go to the left, insteadof the right,
thèse rules require early notice of such intention, and such a notice is not carly
or timely when It would compel the other vessel to stop in order to avoid a
collision, unless in a situation where the former vessel bas no other alterna-
tive.
3. Same— Inspectors' Rules.
Under the inspectors' rules the vessel signaled is bound to give an answer
promptly, either of assent or dissent.
4. Samb — Mutual Fault.
Where the f erry-boats Gt. 0. and R. were approaching each other în the East
river in the fifth situation, and the latter being on the former's starboard hand,
and the G. C, instead of stopping and backing, as she might hâve donc, sig-
naled with two whistles, and at the same time starboarded her helm so as to
cross the R.'s bows, and the latter made no answering signal, and the G. C,
after going about a length under a starboard wheel, again signaled with two
whistles, to which there was no response, and she then stopped and backed un-
til tho collision, which happened shortly after, and the évidence being contra-
dictory as to the other détails of the maneuvering of the two vessels, he,ld,
that both were in fault ; the Q. C, for undertaking to pass to the left and cross
the R.'s bows without assenting signais, and the latter for not answering as re-
quired, and thereby preventing the emlmrraasment and confusion of the Q. C,
which in thiscase plainly contributed to the collision.
5. Bame — KxousE— Depabture fiîom Rules.
Though the G. C. ran in connection with railroad trains, and the avoidance
of unnecessary stops was désirable, and though the usual course of the R. at
this point was to swing to port, held, that thèse facts, though a sufflciently
good reason for the signal of two whistles, given by the G. C, regarded merely
as a proposition or request to pass to the left, were not a justification for any
departure from the rules of navigation, without assenting signais from the R.
in reply.
In Admiralty.
Benjamin D. Silliman, for libelant.
Shipman, Barlow, Larocque d Choate, for claimant.
Brown, J. This action was brought to recover damages for a col-
lision between two ferry-boats — the Eepublio and the Garden City —
about 4: 30 o'clock, in the afternoon of August 17, 1878, off Gatharine
street, in the East river. The day was fair, the wind light, the tide
three-quarter ebb. The Eepublic belonged to the Catherine-street
ferry, and was proceeding across the river towardsMain street, Brook-
lyn. The Garden City was coming down the river from Hunter's
Point, with the tide, to her slip at James street. At the time of col-
lision the Garden City was heading nearly down the river, but a little
v.l9,no.7— 34
530 FEDBBAL BKFOBTEB.
toward the Brooklyn shore ; the Eepublio was going nearly across the
river, but heading a little downward. The starboard bow of the Gar-
don Gity, which was much the larger boat, struck the port bow of the
Eepublio, aùd her guards ran over the deck of the lattèr, inflicting
some injury. The blow was comparatively a light one, as both boats
were nearly stopped.
According to the aocount given by the pilot of the Eepublio, as he
was about clearing his slip on the New York shore he was obliged to
stop to allow the steam-boat Superior to go up the river juat in front
of him. As she passed him he saw the ferry-boat Alaska about 600
feet up river, off Market street, coming nearly direotly down river,
but heading a little to the westward, and estimated to be about 300
feet off the New York shore, and the Garden City, as the pilot esti-
mated, about six or seven lengths — that is, about 900 feet — astern of
the Alaska, and nearly in her wake, but about half a breadth further
ont in the river. He testified that as the Superior passed him he
gave one whistle, intended for both the Alaska and the Garden City,
which, the pilot says, was replied to with one whistle by both; that
he then went ahead; that the Alaska slowed and stopped, passing
astern of him; that the Garden City, instead of stopping or slowing,
sheered out into the river when about five or six lengths off — i, e.,
about 700 feet — and blew two whistles; that he then stopped his own
engines, but did not blow any whistle in reply to this signal of the
Garden City ; that then the Garden City stopped her engines ; that he
then started ahead, and blew one whistle simultaneously, being then
about a length from the Garden City, and that the latter thereupon
started ahead, blowing two whistles ; that he then stopped and backed
until the collision; that he was obliged to go ahead in order to get
out of the way of the Alaska ; that there was not room to swing round
up river and go between the Alaska and the Garden City; and that the
collision was about 300 feet off the New York shore, or at least not
more than one-quarter across the river.
The pilot of the Garden City testifies that he was about 100 feet
further out in the river than the Alaska, and considerably astern of
her; that he heard the signal of one whistle from the Eepublio and
the Alaaka's reply of one whistle; that he did not understand that
signal to be intended for him, and gave no whistle in answer to it,
and that he did rtot blow one whistle at ail; that when about off pier
37 or 38, and some 500 or 600 feet distant from the Eepublio, and
five or six seconds aftêr her one whistle, he gave her a signal of two
whistles and immediately starboarded his helm, to which the Eepub-
lio made no reply ; that four or five seconds afterwards, and after
passing about another length, and when off pier 37, he blew two
whistles again, and at the same time stopped and back-ed, and kept
backing with his helm to starboard till the collision ; that the Eepub-
lio did not, after she had signaled the Alaska, make a stop, as alleged,
and then go ahead a certain time with one whistle; that he himself
IHB OARDEN CITY. S 31
did not, as alléged, go aheàd after etopping and backing; that the
Eepublie did not whistle at ail after her first whistle to the Alaska;
that under hîs own reversed engine he got seveû or eight turns baok-
wards, and would probably bave been entirely etopped by another
turn; that when he blew his second two whistles and stopped and
backed o3 pier 37, the Alaska was about half a length out and away
from the slip, and about 300 feet from him, and that the Republio
was also about 300 feet frona him, and nearer the New York shore,
heading a little np river; that the u suai course of the Catharine-street
ferry-boats at that time of tide was to corne out from the slip under a
starboard helm and go up the river, swinging within a space of about
300 feet.
The other witnesses called upon each aide, though differing in some
détails, generally corroborate the aceoant given by the respective pi-
lots, as above stated, the greater number of experienoed nautical men
being undoubtedly on the side of the libelants. The pilot of the Alaska
states that the Garden City was about 400 feet astern of him when
the Republic's one whistle was given, and about 50 to 75 feet further
out in the river ; that the Republic passed from 200 to 300 feet ahead
of the Alaska ; that she could not bave swung round so as to go, as
the Superior did, between the Alaska and the Garden City; and that
the latter might hâve avoided the collision by slowing and backing, as
the Alaska did.
Without considering more minutely the différences in the accounts
given by the respective parties, nor relying much on the varions es-
timâtes of distance given, it seems to me clear that, the chief respon-
sibility for this collision must rest with the Garden City, and that
there are several distinct faults with which she is chargeable.
1. There were no such obstructions as to prevent the application
of the ordinary rules for the navigation of the East river. The
Garden City in coming down had the Republic upon her own star-
board hand ; the latter was seen in snfficient time for the Garden City
to avoid her, and, by the statutory rule, the Garden City was there-
fore boand to keep out of the way, leaving the Republic free to keep
her course. The évidence, as it seems to me, leaves no doubt that
had she slowed and backed, as the Alaska ahead of her did, there
would bave been no difficulty. The two vessels being in the fifth
situation, the ordinary course required of the Garden City by the in-
spectors' raies was to pass to the right ; that is, astern of the Repub-
lic. There was no controUing reason compelling *he* to adopt the
exceptional course of going to the left and attempting to cross the
bows of the Republic. This departure from the ordinary rule was
clearly the primary cause of the collision ; and where such departures
are not called for by any controUing necessity, and are adopted upon
the mère option of the vessel bound to keép out of the way, they
ought to be held to be at the péril of the vessel adopting them, un-
532( 7BDEBAL BEFOBTEB.
less it appears that, notwithstanding sucli departure, the collision was
brought about solely by the fault of the other vessel. The Chesa-
peake, 5 Blatchf. 411 ; The St. John, 7 Blatchf. 220. That cannot be
held to be the case hère, notwithstanding the fault of the Eepublic in
not answering the signal of two whistles, because I am satisfied that
had the Eepublic kept her course without stopping, as she was en-
titled to do, whatever be considered her course, whether straight
across the river as then headed, or swinging up the river as cus-
tomary, the collision could not hâve been avoided, and that the only
way of avoiding it, after the Garden City's two whistles and star-
board helm, was by the Bepublie's stopping and backing, which the
Garden City had no right to impose upon her.
2. Whilé the inepectors' rules recognize (page 38) circumstances
in river and harbor navigation in which "for good reason the pilot
may find it necessary to deviate from the rule requiring him to go to
the right," they also require that in sueb a case he shall give "early
notice of sueh intention by two blastsof the steam-whistle." Except
in sonxe exigency of navigation which did not exist hère, no notice
can be considered early or timely, on the part of a vessel which is
bound to keep out of the way, that would require the other vessel to
stop in order to prevent a collision, for if this were allowed, then the
vessel bound to keep out of the way would, in effect, reverse the ob-
ligation of the statute, which provides that she shall keep out of the
way and that the other shall keep her course. The former, in effect,
would be dictating to the latter, and compelling the latter to stop and
give way contrary to the statute, which déclares that the former is
the vessel which shall keep out of the way of the latter. The notice
then must be so timely as not to require the other boat to stop.
There may plainly be spécial circumstances in river navigation where
this rule would not apply, as where a boat is coming- down with the
tide and another is coming out of a slip too near to be avoided by
going astern of her; and so in varions other circumstances which
might be instaneed. The rule referred to applies only to ordinary
navigation where there is no obstruction and nothing to prevent the
vessel bound to keep out of the way from doing so, and giving time
by signais as to her proposed course. The signal of two whistles
given by the Garden City I must hold, was not in this case such
early and timely signal as is required by the inspectors' rules, be-
causcj in the situation of thèse two ferry-boats at that time, I regard
it as impossible for the Garden City to hâve avoided the collision by
going to the left unless the Eepublic stopped and backed. As the
Garden City could not require this of the Eepublic, so long as she
could herself keep out of the way of the Eepublic by slowing and go-
ing to the right and allowing the Eepublic to keep on in her course
as she had a right to do, it follows that under thèse circumstances
her signal was too late, and that the time had already passed when
the Garden City might lawf ully go to the left, of her own option, inde-
THE OÂRBEN OITT. 533
pendent of any assent of tlie Eepublic, and that the Garden City
was in fault for attempting to do so.
3. Again, there being no necessity for the Garden City to go to
the left, and the signal of two whistles being given too late as the ex-
ercise of a positive right to cross the bows of the Republic, since that
would hâve compelled the Republic to give way, that signal was law-
ful at the time it was given only as a proposition or request to the
Eepublic to be allowed to pass to the left by the latter's aid and con-
sent. The pilot of the Garden City bad no right, therefore, to star-
board bis helm immediately on giving the signal, as the évidence
shows that he did, before receiving an asseuting response from the
Eepublic. This was in effect dictating the course of the other vessel
and depriving her of the right of way to which she had the superior
right, under penalty of collision if she failed to yield. Until the Re-
public assented to this exceptional course, as proposed by the signal
of two whistles, the Garden City had no right to act upon it. Her
doing 80 manifestly contributedto the collision, and, upon this ground,
as well as the others, she must, therefore, be held responsible. The
Johnson, 9 Wall. 146, 155; The Mihoaukee, 1 Brown, Adm. 313, 325;
The Delaware, 6 Fed. Ebp. 198; The Franconia, 3 Fbd. Rep. 397,
401, 403; The Hudson, 14 Fbd, Rep. 489.
While the primary responsibility for this collision resta upon the
Garden City, for the reasons above stated, the Republic seems to me
as plainly chargeable with violation of the inspeetors' rule, which re-
quired her to "answer promptly" the signal of two whistles given by
the Garden City proposing her exceptional course. Thèse rules, en-
acted in conformity with section 4412 of the Revised Statutes, are of
binding obligation. The supervising inspeetors were authorized to
frame thèse rules in conséquence of more particular provisions, and
more exact information being required by pilots in regard to each
other's movements in rivers and crowded harbors than the ordinary
rules of navigation afford. Nowhere is the need of thèse fuies more
urgent and an observance of them more essential than in navigation
about this port. In the case of The B. B. Saunders, 19 Fed, Ebp, 118,
I hâve recently held it a fault to maneuver in accordance with a sig-
nal before answering it. The Republic in this case did not answer
either of the two signais of the Garden City. Having disobeyed this
rule, to avoid being charged with responsibility, the burden of proof
is upon the Republic to show that her failure to reply could not pos-
sibly bave affected the resuit. 2'he Penmylvania, 19 Wall. 125,
137. The libelant's counsel urges that this did not affect the re-
suit because the beats were already so near to each other that a col-
lision was then inévitable. This contention seems to me not sus-
tained by the évidence; and it is also attendedby considérable im-
probability. Tbe évidence shows that there were two signais given
by the Garden City of two whistles each, besides several toots indi-
cating danger. The pilot of thé Garden City testifies that he had
given no préviens signal of one whistle to the Republic; so that, ac-
684 FECEBAL SEFOBTER.
cording to his testimony, his first two whiôtles were the first signal
given by him to the Republic. Now, it is certainly highly improbable
that a pilot of any expérience or sensé of responsibility, such as the
pilot of the Garden City certainly was, would give a signal propos-
ing to cross the bow of a ferry-boat for the first time when he was so
near to her that a collision was inévitable; and the improbability is
still greater if he had preyiously agreed to go to the right by a signal
of onewhistle. The testimony of the pilot of the Republie, moreo ver,
is to tbe effect that the Grarden City stopped at some time after her first
two whistles, whereupon he started his own engine ahead, and that
he might, as he thinks, hâve thus cleared the Garden City, if the lat-
ter had not again started ahead under two whistles. The engineer
of the Republic testifies that under this, her last, headway she made
about six révolutions. This must bave carried her forward some con-
sidérable distance. The two vessels were approaching each other
iiearly at right angles, and as they collided at the bows, and both
boats were then almost stopped, a very little less forward motion on
the part of the Republio would clearly hâve prevented the collision.
Thèse considérations, as it seems to me, prove conelusively that when
the two whistles of the Garden City were first given, the situation
and heading of the boats could not hâve been such as to involve any
necessity of a collision. The situation was not in extremis, as in the
case of The Ghesapeake, supra.
Nor can it be said that the failure of the Eepublic to answer the
first two whistles of the Garden City did not resuit in contributing to
the collision, because she at once stopped her engines, assuming it
to be true that she did so ; for there is no question that her failure to
respond led the Garden City, after going about a length, to repeat her
signal, and at the same time to stop and reverse her engines. Even
this signal was not responded to; for the Republic, according to her
own story, then went ahead, and, in doing so, as stated above, col-
lided gently with the Garden City. Had the Republic intended to
keep on at ail after the Garden City's first two whistles were given,
considering that this would, as I find, and as the libelant's witnesses
testify, bave involved danger of collision, she should bave replied to
that signal promptly with one whistle, showing her dissent; and, in
that case, the pilot of the Garden City would bave known of the dis-
sent and that he must reverse at once, as he did afterwards, instead
of waiting for a reply until he had gone a length ahead, when his sig-
nais were repeated, and when he did commence to back. This différ-
ence of time in backing was of itself sufi&cient to bave prevented the
collision, and was the direct resalt of the Republic's failure to respond
with one whistle if she did not intend to accède to the course pro-
posed by the Garden City. If, on the other hand, the Republic did
intend to assent to the signal of two whistles, and to give way to the
Garden City, as it would seem that she did intend, from the fact of
her stopping, if the account given by her pilot be correct, then she
was equally bound to reply "promptly," so as to permit the Garden
THE GABDBN OITT. 535
Citj to go ahead confidently and without stoppîng. Had such assent-
ing response been given and the Garden City allowed to continue go-
ing aJiead, instead of baclîing, tiie Eepublic stopping meantime, as
lier pilot says she was then stopped, the collision could not havehap-
pened. I havé much doubt, however, as to this part of the account
given by the pilot of the Republic. ïhe story of the pilot of the Grar-
den City seems the more natural and probable. This part of the case
shows évident embarrassaient and confusion, occasioned by the f all-
ure to respond to the signais, as reqnired; and such failure has been
repeatedly held to be a fault. The Clifton, 14 Fed. Rep. 586; The
Grand Republic, 16 Ped. Eep. 424, 427; The Beaman, 18 Pbd. Rep.
334; The B. B. Saunders, supra.
The Garden City ran in connection with railroad trains, and it waa
a, natural and lawful purpose to make good time and as few stops in
navigation as possible. Her pilot had a right, also, to take into con-
sidération the usual practice of ferry-boats to swing to the northward
on coming out of their slip at that time of the tide. While neither
of thèse considérations, nor both combined, could furnish any justi-
fication for any disobedience or neglect of any rule of navigation,
gênerai or local, nor authorize the Garden City to cross the bows of
the Republic without the consent of the latter, unless she could do so
without compelling the Eepublic to stop, theydid furnish good and
sufficient reasons for proposing to pass to the left, which her pilot
evidently supposed would accommodate both, and required the Ee-
public to answer promptly under the inspectors' rules.
Nor can I find any justification for the Repnblic's going ahead in
the manner stated by her pilot, if his account in that particular be
correct, after he had once stopped, on hearing the Garden City's first
two whistles. For the Eepublic must then hâve been to the wesfcward
of the Garden City's course; under her six révolutions ahead the
Eepublic must bave made a considérable distance to the eastward, so
that whether the Garden City went ahead or backed, it was the last
movement ahead by the Eepublic which immediately contributed to
the collision, and it could not hâve happened without that. The
Garden City was, doubtless, already in fanlt, for the reasons I hâve
stated above; and her fault was apparent, at least, to the pilot oî the
Republic; but this did not dispense with the use of ail reasonable
means and nautical skill on the part of the Eepublic to avoid a col-
lision, notwithstanding the existing faults of the Garden City; and
the danger of collision was then so évident that both alike were bound
to keep away from each other. The C, C. Vanderhilt, 1 Abb. Adm.
331, 364; The Vim, 12 Fed. Eep. 906, 914, and cases cited.
For thèse reasons the Eepublic must also be held in fault, and the
damages to her, less the damages to the Garden City must be appor-
tioned between the two. The libelants are entiiled to a decree ac-
f'.oi-dingly, with costs, with an order of référence to ascertain the
itmoimt, if the parties do not agrée. ■ .
536 FEDSBAIi BEPOBTEB.
Â.STBEUP ». Lewy and otbers.
L,EWY and others v. The Exoellekzen Sibbebh, etc.
(District Court, 8. D. NeuD York. February 7, 1884.)
1. Shippinq— iMpnoPER Stowage— Damage to Cargo.
Where in a short but violent gale the bottom of a bark gave way in the mlddle
froni four to five inclies, through overloading with iron rails amidships, caus-
ing a bad leak, wliureby a cargo of rags wua damaged, A«!d, that the négligence
of the vessel in improper stowage was the proximate cause of the leak, for which
the ship was responsible, and that the conséquent damage was not through
périls of the seas, within the exception of the bill of lading,
2. Same— MabtEb's Adthoritjt to Bbli- — Notice.
The master has no authority to sell damaged cargo in a foreign port with-
out notice to the owner orshipper, Tçhen there is abundant time and meana
for communication with him.
3. Same — Case Stated — Bill of Lading— Quality Unknown.
■Wherc the bark E. S., laden with rags and railvoad iron, in a voyage from
Liban to New York, feprung a leak in a gale in the North sea through over-
loading amidships, whereby some of the rags were wet ; and being obliged to
put in at Cowes for repairs, the cargo was ail unloaded, and a considérable
portion of the rags was tound to bé hot, steaming, and rotten, and not capable
of being put into condition to be brought to New York ; and communication
being practicable with the shipper at Liban by mail within three days, and by
telegraph daily ; and that portion of the cargo not capable of being brought to
New York having been soîd after repeatedsurveys, and under the advice of the
consul, af ter notice sent byhlmto theshipperat Libauwithout answer or direc-
tion received in reply, and the sale being fairly made, hM,, that the sale was
justifiable, but that the vessel wag responsible for ail loss occasloned by the
leak through overloading amidships. lleiâ, also, that under the terms of tlK-
bill of lading, " quality unknown," the vessel might show bad condition of the
rags when shipped ; that the steaming condition of the rags on the morning
foflowing the gale was an indication that part were probably shipped in bail
condition ; and there being no direct évidence of their condition when shipped;
held, that that question should be submitted for further évidence betpre the
commissioner in connection with proof of damage ocoasioned by the ship's
leak.
4. Evidence— Commission — Anbwkk tjo General Intereogatort.
Upon commission to examine the consul at Cowes as a witness in behalf of
the bark, the consul, in reply to the laat gênerai interrogatory, whether he knew
anything further to tho advantage of the ship, having replied that he and his
flrm communicated with the shipper at Liban before the sale and received no
answer or direction ; the subject being nowhere else alluded to in the plead-
ings, interrogatories, or testimony, and the commission having been returned
and flled a year before the trial, held, that the answer should stand, and that it
was suffleient prima fade évidence of proper communication with the shipper
in the absence of any countervailing évidence, and that the motion to suppress
that answer or for leave to cross-examine by further interrogatories should
hâve been made before trial.
The above libel in personam ^as brought to recover the sum of
$1,566.62 freight for 9él baies and 66 bags of rags shipped on the
bark Excellenzen Sibbern, at Ubau, April 22, 1880, to be delivered
in New York. The libel in rem -was brought to recover damages for
the non-delivery of 524 baies and 28 baga, part of the above ship-
ment, valued at $15,000. The rags not delivered were sold by the
master at Cowes, at which port he h ad been obliged to put in, in dis-
trbss. The cargo was there unloaded for the purpose of repaituig
ABTBBUP V. LEWY. 537
tbe ship, and a portion of the rags being found so damaged by wet,
beat, and rottenut^-s that, despite ail efforts to improve their condi-
tion, they were deemed unfit to be reshipped, they were condemned
on survey and sold, so far as salable, and other portions thrown
away as wortbless. For tbe vessel, it was contended tbat tbe inju-
ries to tbe bark were caused solely by tbe severe weather wbich sbe
encountered in tbe Nortb sea ; tbat tbe rags were in a -wet and unfit
condition wben sbipped, wbicb in part caused their damaged condi-
tion at Cowes ; and tbat the sale of tbe damaged portion was neces-
sary; was effected in tbe best manner; and was made after notice
sent to tbe sbipper, (the bill of lading being to order,) to wbicb, how-
ever, no answer was received. On bebalf of the sbipper, it was con-
tended that tbe rags were ail sbipped in good condition; that tbe
damage to tbe vessel, and ber conséquent leaking, and the injury to
tbe rags, arose from the unseaworthiness of the vessel, tbrough the
improper stowage of tbe iron, too great weight being placed between
tbe main and the after batcb, wbicb caused tbe bottom of the ves-
sel to give way and ber keel to drop from three to five inches ; also,
that no proper communication to the sbipper was proved, and that
tbe sale of tbe rags at Cowes was unautborized.
■ Tbe Excellenzen Sibbern was a Swedish vessel, 359 tons register,
about 500 tons burden, built in 1874, and rated in 1877 in tbe French
Veritas as A 1; lengtb, 130 feet; beam, 27 feet; deptb, 14 feet; and
single decked. Her cargo on this voyage consisted of 1,362 old iron
T rails, weighing about 251 tons, and 186|- tons of rags ; in ail 437 tons
weight. Both were sbipped by H. Seelig, at Libau, to be delivered
in New York to order. The vessel commenced loading on February
26th ; 400 rails were put in the bottom of tbe ship ; then rags ; then
above the rags, in a sort of trunk-way running fore and aft along
tbe middle of the vessel, the remaining 963 iron rails; and then rags
on top. Tbe rags were stowed bya regular stevedore; the rails bya
common laborer. Tbe bark, according to tbe testimony of the master,
was in perfect condition on leaving Libau, baving had a new set of
sails and new rigging. She sailed for New York on April 9tli, touched
at Copenhagen, and left the Elsinore roads on tbe evening of the 14th.
On the aftemoon of tbe 21st she encountered a beavy gale in the
Nortb sea, wbicb abated on the evening of tbe 22d. On tbe morn-
ing of tbe 23d the vessel was found leaking heavily, and, on removing
the hatches, it was discovered tbat the bottom of tbe vessel bad given
way in tbe middle, so tbat five of tbe stanchions running from the
keel to tbe deck-beams were from two to five inches short. Tbe mate
testified that the bark sprang aleak on tbe night of tbe 2l8t or 22d;
that they "could hardly keep it up with the pumps; it kept us pump-
ing ail the time;" tbat after tbe storm "we got down in tbe hold and
could see tbat tbe bottom was sunk four inches, from the fore part of
the main-hatcb to the after-batch ; she was ail the way along a little,
a very little, from the fore-mast to tbe mizzen-mast; ail tbe keys were
538 FEDERAL BEPOBTEB.
brokeni ând ail the stanchions from the main-hatch to the after-
hatoh;". that "she had given way a little in the water-ways and
seams;" the distance she had sunk down "when it was heavy seas
was between four and five inches; she jumped up and down; the
bottom was keeping jumping up and down on her;" and that af ter ar-
rivai at Gowes the bottom was still sunk some three inches or three
and la half inches, and made at anchor about two or three inches of
water per hour. On the 23d, 'when the hatches were opened, the
baies of> rags were in a heated and steaming condition. On discharg-
ing the cargo at Gowes, a few days after, some of the baies were so
hot as to burn the hands in handling them. On the 28th the master,
having instructions from the owners of the ship, ordered the requisite
survey. In the report of April 29th it is stated that the vessel "had
gone down very much in her center between the fore-part of the main-
hatch and the fore-part of the after-hatcb. In this part of the ship
the hold stanchions were torh away from the beams and had sunk
about two inches; the main-mast and the beams appeared to hâve
gone down about two inches," and the main-mast and pumps the
same. In the report of the survey of the cargo, May llth, 524 baies
and 28 bags of rags were reported in a very wet and damaged state;
many of them so greatly heated as to be actually smouldering; they
weredirected to be kept separate and in the open air as long as prac-
tieable, with the view of partly drying them. Ten other baies,
slightly wet, were directed to be opened, dried, and repacked. Upon
a further survey directed by the consul, the surveyors, on the twelfth
of June, reported that on previous surveys, particularly on the third
of June, the baies and bags above referred to had been found ex-
tremely wet and damaged, a large number of them greatly heated,
and many in a rotten and partially deeomposed condition ; that, where
practicable, the baies were opened and exposed to the air with the view
of improving their condition, and that no perceptible improvement was
effected ; and that, believing that they eould not reach New York with-
out becoming entirely worthless, they had on the third of June con-
demned the whole of said baies and bags as quite unfit for shipment
and had recommended their sale at auetion; and that on the eleventh
of June they had again re-examined the rags with a rag merehant,
and that they adhered to their previous conclusion, in which the mer-
chant concurred. About May 25th notice of the intended sale of the
rags for June 15th was given by advertisements put in the Shipping
Gazette and in the local and London newspapers; hand-bills were also
fixtensively posted. The sale was conducted by an auctioneer accus-
tomed to the sale of ail kinds of damaged cargoes, who testifies that
the sale was attended by at least 150 persons, many of whom bid for
■the various lots; that the compétition was brisk; and that he con-
sidered the sale satisfactory for goods in such a damaged condition,
many of the baies being quite rotten, and "having to be packed in
bags before they eould be weighed."
ASTSRDP P. IiEWT. 03»
The consul, who was examined upon commission, in answer to the
gênerai iuterrogatory if he knew of any other thing of benefit to tbe
vessel or her owners, said :
"My flrm, as agents, and the captain personally, communicated with the
shipper of the cargo at Liban on the arrivai of the ship at Cowes, and after-
wards ; but the shipper made po reply to such communication nor gave any
directions ; the parties claiiniiig to be the owners of the rags werç not com-
municated with, because neither their names nor addresses were known."
The repairs of the vessel being completed, she left Cowes June 25th
and arrived at New York on the thirteenth of August. A portion of
the rags delivered in New York, it is claimed, were in a damaged
condition. The bill of lading of the rags eontained the following
clause : "Quality, weight, and marks unknown; the rags loaded under
and over iron."
Sidney Chubb and Chas. M. DaCosta, for the shippers.
mil, Wing é Shoudy, for the Sihbern and owners.
Brown, J. Upon the évidence in this case it must be held that
the sinking of the keel and bottom of the bark prior to her arrivai at
Cowes was an unusual and extraordinary occurrence. Cumming, a
stevedore, one of the experts in behalf of the vessel, testified that
with heavy cargoes on the ship's bottom, it was not unusual that there
should be a sinking of from one to three inches, but that he never
knew of a case of a sinking of five inches ; and that, in his judgment,
150 tons, with possibly 20 additional, would hâve been a suitable
weight over a space of from 40 to 60 feet along the center of the ves-
sel, and that the sinking of the bottom, to which he refers, might or
might not cause the ship to leak, according to circumstances. The
mate says that her bottom dropped from four to five inches at sea,
and from three to three and a half when lying still at Cowes. Karbek,
the carpenter, testified that "the ship gave way ; she sank in the mid-
dle four inches." Other witnesses make it from three to four inches.
Although the bark met with a severe gale, which came on during the
afternoon of April 21st, it was scarcely more than of 24 hours' dura-
tion, since the protest expressly states that it abated on the evening
of the 23d. The sea is spoken of as running very high, and some
water swept the deck ; but, it must be noted, that nothing was car-
ried away, nor a spar lost; and it seems to me that the testimony of
the experts on behalf of the shippers, and their judgment, consider-
ing the circumstances above mentioned, are entitled to the greater
weight, and that there was nothing so extraordinary in the weather^
encountered on the twenty-first and twenty-second of April as to
account for the extraordinary resuit upon the ship, and for her
dangerous leaks, had she been seaworthy in both huU and stowage
when she sailed. Aecepting the testimony of the master, that her
huU was in good condition when she left Liban, and her rating Al
three years previous, the only adéquate cause that aan be perceived
for this extraordinary resuit is in the mode ôf loading the iron rails.
540 FEDERAL BEPOBTEB.
namely, too great quantity amid-ships. The évidence leaves no doubt
that the chief sinking of the vessel at the bottom was in the middle,
from the fore part of the main hatch tû the after hatch, and this is
where it appears, upon satisfactory proof, that the ship was over-
loaded. Cumming, the expert in behalf of the vessel, would allow as
proper but 150 to 170 tons weight along that portion of the ship;
the évidence indicates that there were at the least 225 tons within
that space, and probably considerably more. Nine hundred and
sixty-two of the rails were placed in the trunk-way in that part of the
ship; if of average weight, they alone amounted to 176 tons. The
trunk-way, whioh was on top of the first course of rags, was eight
feet wide, running fore and aft along the center. The gênerai mode
of stowage was approved by ail the witnesses, provided the upper
course of rails was sufficiently distributed in length fore and aft.
While the testimony on this point is not so exact and explicit as could
be desired, the inference from the testimony of the mate and steve-
dore is strong that this trunk-way was amid-ships, and did not extend
to the fore-mast, as olaimed. The expert for the vessel testified that
the fréquent loosening of the stanchions, to which he referred, was
between the main-mast and the fore-mast, and that there ought not to
be weight enough aft to loosen the stanchions in the end of the ship;
and that the loosening he referred to was not from the dropping of
the keel, but from the ends of the beams going down. In this case,
the chief dropping of the bottom was from the main hatch aft; while
the captain and ail the other witnesses from the ship spoke of her
bottom and keel as giving way in the middle; "not worth mention-
ing," the captain said, "except in the middle." The mate said "the
bottom sank four inohes, and in the seas kept jumping up and down
from four to five inches." The carpenter said "the ship gave way;
she sank in the middle four inohes." The weight of the cargo in the
middle, even according to the testimony of the ship's own expert,
with the corresponding spécial injury and extraordinary leaking aris-
ing from her bottom's giving way, particularly in .just that part of
the ship, seem to me to leave no reasonable doubt that she was over-
loaded in the center; and the testimony of the master, that the rails
were loaded by a common laborer, while a stevedore was employed to
load the rags only, would indicate that the overloading oî the center
arose from a want of suitable judgment and expérience in the distri-
bution of the cargo. As I must find, therefore, that this improper
stowage was the cause of the vessel's giving way at the bottom, it fol-
lows that the ship must answer for the damage caused by the giving
way of the vessel and by the conséquent leak; since, in sueh a case, the
damage is not to be ascribed to périls of the sea, but to the négli-
gence and fault of the vessel. Clark v. Bamwell, 12 How. 280 ; The
Regulus, 18 Fbd. Eep. 380.
2. Under the circumstances of this case, I cannot doubt that it was
the duty of the master, by the gênerai maritime law, to communicate
IBTSBUP V, IjEWT. 541
with the shipper before selling the damaged rags at Cowes. Com-
munication between Cowes and Libau could be had in the ordinary
course of mail within three days, 'and by telegraph within twenty-
four hours. There was abundant time and opportunity for commu-
nication. The ship was laid up there several weeks for repairs, and
the rags were condemned by the surveyors as unfit to be taken to New
York on the third of June, a week after the ship's arrivai at Cowes.
It is not questioned that, under the English maritime law, notice to
the owner, where notice is easy and practicable, is an essential con-
dition of a master's authority to sell or to hypothecate either the ship
or cargo, whether the object be to obtain money for the repair of
the ship, or merely the sale of damaged or perishable goods. Acatog
V. Bv/rna, 7 Exch. Div. 282; The Amtralasian, etc., v. Morse, L.
E. * P. G. 222 ; Cammell v. Sewell, 3 Hurl. & N. 634 ; The Gratitu-
dine, S G. Eob. 240 ; The Hamburg, 2 Marit. Law Cas. 1; Atlantic Mut.
Ins. Co. V. Huth, 16 Ch. Div. 474. Thèse cases ail rest upon one
common principle, that the master, by virtue of his gênerai authority,
does not hâve any right to sell or hypothecate either the ship or the
cargo ; that his authority in thèse respects rests upon necessity solely
and upon the particular emergencies of the occasion; and that this au-
thority is therefore limited by the nature add extent of the necessity.
If the owner is at hand and can be easily communicated With, the
master must advise the owner of the facts, and take his directions;
and where such directions may be obtained, there is neither neces-
sity, nor authority, nor justification for the master to assume to sell or
to hypothecate without notice. Thèse principles I understand to
be substantially adopted by the suprême court in the case of The
Julia Blake, 107 U. S. 418, [2 Sup. Ct, Eep. 191,] affirming the
judgment of the district and circuit courts of this district. 16 Blatchf.
472. See, also, The Amélie, 6 Wall. 18, 27 ; The G. M. Titus, 7 Fed,
Eep. 826, 831; Butler v. Murray, 30 N.Y. 88, 99; The Joshua Barker,
Abb. Adm. 216; Pope v. Nickerson, 3 Story, 465; Myers v. Baymore,
10 Pa. St. 114 ; KaU v. Franklin, etc. Ins.Co. 9 Pick. 466 ; Pike v, Balch,
38 Me. 302. In a case like the présent, where there was no need of
selling the cargo for the benefit of the ship, but the sale was made for
the reason only that the damaged cargo could not properly be taken to
the port of destination, and where there was abundant time and means
of communication with the owner or shipper to ascertain his wishes
as to the disposition of his goods, there was plainly no necessity for a
resort by the master to any extraordinary and exceptional powers.
While I should sustain, therefore, the principle invoked by the coun-
sel for the shipper, I am not prepared to find, upon the case as sub-
mitted, sufficient évidence of remissness on the part of the master to
hold the sale unauthorized.
No question was made as to the want of notice in the pleadings in
either of thèse two cases. In the examinatioa of witnesses upon
commission, no question was put by way of examination or cross-ex-
542 - FEDERAI/ REPORTER.
amination upon this suljject, nor in the examination of tûe master
hère in 1880 was any allusion made to it by counsel on either side.
The counsel at Cowes, in his déposition, however, in answer to the
last gênerai interrogatory on the part of the ship, stated that his firm,
as agents, and the captain personally, communicated with the ship-
per.at Liban; but the shipper made no reply, and gave no directions.
From this answer it is obvions that the consul, under whose advice
the several surveys and repairs of the ship, as well as the surveys
and sales of the cargo, were made, was familiar with the well-settled
English rule requiring notice to be given ; otherwise he would not
naturally hâve volunteered this testimony without his attention being
directed to the subject. This, of itself, furnishes a strong presump-
tion in aid of his own testimony that such communication was sent,
and that no answer was received. Upon the trial, counsel for the
shipper moved to strike out this answer, for the reason that it was
volunteered, and was upon a subject as to whi, h the witness was not
interrogated, and as to which there had consequently been no oppor-
tunity for cross-examination. The commission, however, had been
returned and flled more than a year before the case was brought on
for trial, and the court declined to strike out the testimony, for the
reason that it was material, and because there had been abundant
opportunity either for the motion to strike out to be made earlier, or
for the return of the commission for further cross-examination if that
had been desired ; and as neither party had taken any steps in re-
gard to this part of the commission, the answer should be allowed to
stand. Although the consul's answer is quite gênerai, and does not
state what partioular facts were communicated to the shipper, yet as
the évidence of a public officer, acting in discharge of known duties
under the maritime law, and in no way personally interested, it seems
to me that every intendment is to be made in its favor. The goods
being consigned to order, only the shipper's name was known; no
other communication or notice was therefore required than to the
shipper; and the consul's statement is that they communicated with
the shipper at Liban and got no answer nor any directions. Dui^ng
the long time that bas elapsed since this commission was returned
and filed there bas been abundant opportunity to obtain the ship-
per's testimony by commission, and to show, if such was the fact,
that no such communication was ever received, or if received, that it
was too late, or for any other reason insufficient. As no évidence of
this kind has been procured, and no reason given- for not obtaining
it, if material, I think the answer of the consul, though brief and
gênerai, is nevertheless prima facie sufficient évidence of compliance
with the obligation to communicate with the owner. The objection
upon this ground cannot, therefore, be sustained.
3. In regard to the sale itself I see no reason to doubt that it was
fairly conducted, w^th every reasonable preliminary effort to do the
best that could be donc, and to realize the best prices Eor the dam-
ASTSRUP V. LEWT 640
aged goods. It appears to hâve been well advertised; a numerous
comppny was in attendance on the sale, and the compétition brisk.
No évidence was adduced that the priées obtained were inadéquate.
The fact that one of the purchaseré, shortly after the sale, sold his
lot at more or less profit, the amount not stated, is not sufficient év-
idence that the sale was unfair or the price realized too low.
4. The évidence as to the condition of the rags when the hatches
were opened on the twenty-third of April, and when the bark arrived
at Cowes on the twenty-seventh, is such that I cannot resist the con-
clusion that a part of the rags was not shipped in good order. The
évidence as to the filthy, rotten, and offensive condition of many of the
baies when unladen a few days after the arrivai at Cowes, some being
80 hot as to be actually smouldering, is so strong as, in my judgdaent,
to necessitate the inference of bad condition when shipped. The
qualification on the bill of lading, "quality, weight, and marks un-
known, " takes away any presumption whioh might otherwise be de-
rived from the bill of lading, of good condition internally when put
aboard, andleaves this question entirely open to any inferences which
may be properly drawn from the proof s. Clark v. Barnwell, 12 How.
272; The Querini Stamphalia, 19 Ped. Eep. 128, and cases cited. In
the absence of any testimony as to the condition of the rags when
shipped, or as to the time within whiûh sound rags might become in-
jured to such a degree from sea-water, the damages, as described by
the witnesses, seem to me too great to be aScribed solely to the leak
arising on the twenty-second of April.
In the libel filed by Lewy and others, the libeiants are therefore
entitled to a decree for such damages to the rags as arose from the
giving way of the bottom of the vessel in the storm of April 21st
and 22d, and a référence will be ordered to compute this damage.
As the évidence is very meager and is insufficient to fôrm any confi-
dent or certain judgment concerning the condition of the rags when
shipped, the whole question touching that matter, as aiïecting the
damages caused by the fault of the ship, may be heard before the
commissioner upon this référence on such further évidence as either
party may introduce, without préjudice from anything herein con-
tained on that subject. The ship will be responsible for such injury
only as is properly attributable to her springing a leak on the twenty-
second of April through the giving way of her center, excluding what-
ever damage may hâve arisen from any improper packing or condi-
tion of the rags then shipped, if any such be found. Upon this réf-
érence, also, the condition of the rags that arrived in New York will
necessarily form a part of the évidence bearing upon the question of
the condition of the rags when originally shipped; and hence any
question of damage to the baies which were delivered hère should
also be détermine! now, to avoid. further suits on the same subject;
and an amendment of the pleadings may be made accordingly, as
movedfor. The North Star, 15 BUicM. 6Z%, ?<Z^.
An order in conformity herewith may be settled on two days' notice.
644 FEDEBAIi REPORTER.
The Alabama.
'District Court, S. D. Alabama. 1884.)
Admibalty — Maritime Lien — Vbssels— Dredgb and.Scows.
Dredges and scows, though never used in the transfer of passengers or frelght,
and f urnished with no motive power of tlieir own, are vessels, and subject as
such to maritime liens for services rendered and supplies furnished.
In Admiralty.
Lyman H. Faith, for Fobes & Co. and Michael Memgan.
Overall à Bestor and F. G. Bromberg, for August Kling and Oava-
nagh, Barney & Brown.
Pillans, Torrey é Hanaw, for Hyer & Co. and Horsler and others.
J. L. é G. L. Smith and R. H. Clark, for claimants.
Bruce, J. A number of libela hâve been filed in this court against
the dredge Alabama and two scows. One of them is founded upon
a claim for towage of the dredge and scows from Mobile bay, Ala-
bama, to Tampa, in the state of Florida. Another is for services
of the operator of the dredge while engaged in her opération of dredg-
ing, and others are for materials and supplies furnished to the dredge.
To thèse libels exceptions are filed, and one of the exceptions is com-
mon to ail the libels, and excepts to the jurisdiction of the court on
the ground that the claims or contracts sued on are not maritime
contracts, and that no lien exists which can be enforced in the dis-
trict courts of the United States as courts of admiralty. The ques-
tion raised is whether the things libeled (the dredge and scow) are
of such a nature as to make them the subjects of a maritime contract
and lien. Evidence has been introduced to show the character of
the dredge and scows, the manner in which they are built and con-
strueted, the purpose for which they are constructed and used, and
the mode by which they carry on the business of drodging. The évi-
dence shows that the huU of the dredge is built like the huU of other
beats or vessels intended for navigation. That she is strongly built
to support heavy maohinery placed upon her, including a steam-en-
gine which furnishes the power necessary to opéra te the machinery
used in dredging and deepening channels in the water-ways of com-
merce. The scows are constructed like other decked scows, except
*,hat they hâve in them what are called wells, which are inclosed
cpaces open in the deck and closed at the bottom of the scows with
doors, which wells or spaces reçoive the earth which is brought from
the bottom of the channel by the dredging process, and when filled
the barge is towed to some place where the earth is to be dumped, when,
by opening the doors in the bottom of the wells the earth passes out,
and the scow, relieved of its burden, rises up. Neither the dredge nor
the scows bave rudder or masts, though it is in proof that some dredges
similarly constructed do bave masts and sails. The dredge and scows
THB ALABAMA. 545
have no means of propulsion of their own except thàt the dredge, by
the use of anchora, windlass, and rope, is moved for short distances,
as required in carrying on the business of dredging. Both the dredge
and the scows are moved from place to place where they may be em-
ployed by being towed, and some of the tows have been for long dis-
tances and upon the high seas. The dredge and scows are not made for
or adapted to the carriage of freight or passengers, and the évidence
does not show that, in point of fact, this dredge and scows h ad ever
been so used and employed.
It is insisted that structures of the kind described are not vessels,
and are not the subjects of admiralty and maritime jurisdiction;
that contracts for the service or supply of such structures are not
maritime contracts ; that, in order to be bo, they must pertain in some
way to the navigation of a vessel having a carrying capacity and em-
ployed as an instrument of trade and commerce, and that the dredge
and scows in question have no relation to commerce or navigation,
and in no proper sensé can be considered instruments of commerce.
The function of a dredge and scows, such as we have been consider-
ing, is to clean out and deepen channels in the water-ways of com-
merce so as to aid and facilitate ships in their passage to and from,
and while a service of this kind in aid of commerce is a very différ-
ent thing from commerce itself, yet it could hardly be said to have
no relation to commerce or navigation. The relation may not be the
most direct, and the authority relied on is not so definrte and clear
as necessarily to exclude water-craft which may not be engaged or
adapted to the carriage of freight and passengers.
In the case of Thackarey v. The Former, Gilp. 524, the rul,e is thus
stated: "It (the service) must be a maritime service. It must have
some relation to commerce or navigation, some connection with a
vessel employed in trade. * * *"
In the case cited and relied on by the claimants, reported in Flip-
pen, 543, where Judge Beown, in the Western district of Tennessee,
had laid down the rule that the contract must pertain in some way
to the navigation of a vessel having carrying capacity, it should be
borne in mind that it was a case of a raft of logs that was before him,
quite unlike the case at bar hère. He says the contract must per-
tain in some way to the navigation of a vessel having carrying capac-
ity ; * * * and in the case of The Farmer, supra, it is said it
must have some relation to commerce Or navigation, which is ccr-
tainly no very definite and exact statement of the rule, though p«r-
haps as much so as the question admits, for it is often difScult and
even impossible to formulate a gênerai proposition in words that will
unerringly suit every case.
To say that the dredge in question has som© relation to commerce
or navigation is perhaps no stretch of the rule at ail, but upon ibia
subject we are to bear in mind not only the idea of commerce in the
sensé of the carriage of freight and passengers, but the idea of navi-
v.l9,no.7— 35
546 FEPSBAIi BEI^BTEB.
gation copies intOî the question as well. The dredge and scow are
ponstructed to float inand upon thewaters, they airemade to sail, and
for navigation, and oan bej used only in and upon the waters. They
may hâve no motive ppwer of their own, and he moved only by power
applied externally, still they hâve the capacity to be navigated in and
upon the waters, ^nd they are \Tater-craft made for navigation, and
the dredge in question has actually made voyages on the high seas.
The case of Cope v. Vallette Dry-dock Go., in the Eastern district
of Louisiana, reported in 10 Fbd. Eep. 142, and decided on appeal
to the circuit court, Justice Woods delivering the opinion, and the
circuit judge (Pabdbe) concurring, reported in 16 Fbd. Bep. 924,^8
claimed to be in opposition to this view, but I think it is not really
80. That was a case of a claim for salvage services, and in the
opinion the court says :
"The structure (a dry-dock) to whlçh they (thé. services) were rendered*
was net désigned for navigation, and, béing praétically incapable of navigia.-
tion* it hadno more connection with trade or commerce than a wharf, a ship-
yard, or aflxed dry-dock, into whiçb water-crafts are introduced by being
drawn up on the ways. As shown hj the fiadings, it had remained securely
and permànently mdored to the bank for a period bf more than 14 yearS; it
partook moi'e oi the nature of a fixtnré attached to the realty than of a boat
orship." '
To say that the dredge Alabama, in the light of the testimony ad-
duced in thi»ease, partook more of the nature of a fixture attached to
the realty than of a boat or ship, is out of the question. It is essen-
tially in its nature a boat or vessel; and the fact that to operate the
dredgè it is not necessary to hâve licenaed officers or skilled seamen
is not important, for that does not furnish the t«st or criterion by
which the question is to be determined. The doctrine or rule upon
this subject is more satisfactorily and more authoritatively stated by
the suprême court of the United States, in the case of The Eock Island
Bridge, 6'Wall. 216, wheie the court, speaking by Justice Field, say:
"A maritime lien çan only exist upon movable things engaged in
navigation, or uponthings whieh are the subjects of commerce on
the high seas or navigable waterâ*" The court goes on speaking
more particularly to the case there under considération, and says:
"But it [a maritime lien] cannot arise upon anything which is fixed
and immovable, like a wharf, a bridge, or real estate of any kind."
Though bridges and wharves may aid commerce by f acilitating inter-
oourse on land, or the discharge of ; cargoes, they arô not in any sensé
the sulbjects of a maratime Uen. The court hère distinctly recog-
nizes mobility and capacity to navigate as a> périme élément, in de-
termining what things are the subjects of maritime lien.
Tested by this rule, the sco\^s and dredge in question must be held
to be the subjects of a maritime lien, It will not do to say that every
water-eraft which is not used in the carrying of freight and passent
gers is therefore not engaged in and has no relation to commerce and
L-EONABD ». wMÎTWtÊli. 'S'ét
navigation. That is too narrow, is not sustainèd by the anthorities,
nor can it be suBtained by right reason. '
In support of thèse views, in addition to the cases cited aûd coni-
mented upon, the case of the floatinè élevator, Hezekiah Baldwin, S
Ben. 556, and Endner v. Gfreco, 3 Fed. Eep. 411, may be cited.
The reault is that-the exception to the jurisdiction of the court ia
overruled.
•Lbonaed and others v. ■WttrrwiLi..
{Disma Court, s. D. Jfew York. Pebruary 6, 1884.)
1. Collision— Value of Vessbl— How Ascbktainbd.
In ascertaining the market value ,of a viassel sunk in a collision, the commis-
sioner or court is not restrlcted to the évidence of compétent persons who knew
the vessel and testifled as to her market value, though that is in gênerai the
beat single class of évidence. '<
a. BaMB— COST OF COHSTRUCTION.
Whcre the period of collision is one of great stagnation in the market, and
there are no actual sales to f urnish a criterion of market value, the côst of the
veasel, with déductions for détérioration, espeoially when the vessel was 'to-
cently built, may be properly resorted to in determining the value.
3. Same— Cake and Rbtuen of Cbbw.
Though the rescue and care of the orew of a ship sunk in a c611lstoil is ûot,
in the absence of statutory provisions, a légal obligation in the sensé- Cfentail-
ing penalties or pecuniary damages for neglect of it, it is a maritime obligation
reoogaized in the admiraîty ; and any actual expenses incurred by the surviv-
ing ship in cases of collision in the resCue, support, and return to land oî
the crew of the vessel sunk, should be held a part of the pecuniary damage
arising from the collision, anddivided between the two vessels, where both ar«^
in fault.
4. Same— Damages— Demureage.
Where the British steamer A., whioh, af ter a collision with a sehooner ofl
Long Island, took on board the captain and crew of the sehooner whioh was
sunk, and put back towards New York with them, and on meeting à pilot-boat.
paid X25 for the conveyance of the captain and crew toTTew Yofk, and then'
put about on her voyage for Europe, being detained thereby one day, and hav-
ing consumed £11 worth of coal extra, hdd, that under the maritime law, as
well as under the St. 25 and 26 Vict., the steamer should be àllowed to bring
into tlie account, as partof her damages arising from thé collision, £20 demur-
rage for one day's détention, together with the £11 for coal, and £25 for the
money paid fqr conveying the captain and crew to New York.
5. Bamb — Value of Fubnitube and Pbbsonal Epfeots.
In estimâtes of the value of furniture or personal effects lost, a déduction
may be made froni the market value of similar articles new, according to the'
period and time of use, notwithstanding the o wner's testimony that to him they ;
were as good as new.
Exceptions to Commissioner's Eeport.
Scudderé Carter and Geo. A^ Black, îoTlïbél&nts.
Foster é Thomson ani B.D. Benedict, fot res^pànderits.
Brown, J. The sehooner Job M. Léonard having been sunk in the
Atlantic ocean>ofif Long Islaud, on April 18, 1877, through a col-
lision with the steainship Arragon, owned by the respondent, thiB
1548 rSDKBAL BBPOBTEB.
court, by its decree in November, 1879, found both vessels in fault,
and it was referred to a commissioner to ascertain the damages
Léonard v. Whitwill, 10 Ben. 638. Exceptions to the report hâve
been filed by both parties. The value of the schooner at the time of
the loss bas been reported at $20,551. On the part of the libelant
three witnesses who had seen the schooner testify that her value at
tbe time of the loss was at least $26,000; other witnesses for the
libelant estimate her at from $25,480 to $33,000. Witnesses for
the respondent place her value at the time of the loss from $15,750
to $18,000. In this wide discrepancy, the mode of ascertaining the
value adopted by the commissioner was to take her cost of building,
$24,000, in 1874, and deduct therefrom 6 per cent, per annum for
détérioration up to the time she was sunk in 1877, add the cost of a
new set of sails recently put on her, less a slight réduction for a
short period of use, and then from this deduct 5 per cent, for the dif-
férence in the cost of building and conséquent market value between
the year 1874 and the year 1877.
The libelant's principal exception is to the mode in which the com-
missioner arrived at the value of the ship, as above stated, insisting
that as évidence was given of her market value by persons who had
seen her and knew her, that the commissioner had no right to resort
to other methods. Tkc Colorado, Brown, Adm. 411; The Ironmas-
ter, Swab. 443; Dobree v. Schroder, 2 Mylne & C. 489. While it is
undoubtedly true that the best single class of évidence of market
value is the opinions of compétent persons who knew the vessel and
who knew the state of the market at the time of the loss, it does not
^ollow in any given case, because witnesses testify to certain facts,
that' either the commissioner or the court is shut up to their évidence
without giving any heed to other kinds of évidence which may be of-
ered. The cases cited by the appellant recognize equallythe eompe-
tency of évidence of the cost and détérioration as bearing on the amount
to be aUowed. Where from stagnation in the market at the time of the
loss there is difficulty in fixing the précise market value, a resort to
other modes of ascertaining it, especially where the vessel has been
built but a fewyears, is at least allô wable to be taken into account in
arriving at a conclusion. The évidence shows that in 1877, when
this vessel was lost, the market for sailing vessels was in a state of
stagnation, and it was almost impossible to ascertain any actual sales
which wouid furnish propèr data or any criterion for the détermina-
tion of the actual market value . The différent values swom to are af ter
ail but mère estimâtes, and not based on knowledge of similar sales in
1877. It is impossible in such cases to détermine the amount to be
allowed with mathematical certainty. I do not find from the évidence
suffioient reason to interfère with the resuit at which the commissioner
has in this case arrived. In the case of The North Star, 15 Blatehf .
632, the value put upon the Ella Warley by the witnesses varied
from $25,000 to $110,000; the court fixed it at $42,000. In the
LEONARD V. WHITWIIiL. S49
case of The Utopîa, 16 Fed. Ebp. 607, the estimâtes of value ranged
between |8,000 and $15,000; $10,000 was allotted.
The charges of the captain for superintendence during the construc-
tion of the ship were, I think, rightly disallowed as no proper part of
the cost of her building.
Another item excepted to by the libelant is the allowance by the
commissioner of certain expenses incurred by the ship in providing
for the captain and crew, in conséquence of the sinking of the schooner
at the time of the collision. Thèse men were obliged to take refuge
upon the steamer. Instead of taking them with her to Europe, she
returned towards New York, and after proceeding a part of the way,
came up with a pilot-boat, to which she transferred the captain and
crew of the schooner, paying ^25 for conveying them to New York,
whereupon the steamer turned about and proceeded on her voyage.
The steamer was detained in this way about a day, and consumed
additional coal to the value of £11. The commissioner bas allowed
the value of the extra coal, the £25 paid, and £20 as demurrage for
the détention of the steamer in going back with the crew, as part of
her damages arising out of the collision. Counsel for libelant claims
that the expenses thus incurred, amounting to £56, for the return of
the captain and crew to New York, were not légal obligations on the
part of the steamer, and are therefore to be regarded as charges vol-
untarily incurred, aud not a ground of compensation in this accouut.
In the case of The Mary Patten, 2 Low. 196, where both vessels
were in fault, an allowance was made to one of the steamers for tow-
ing into port the other which was disabled, not by way of salvage,
but as a quantum meruit for an act which was proper and necessafy,
and for the beneût of both parties, and therefore as part of the dam-
age which the common fault had caused to the steamer. Lowelë,
J., "says in that case that "the duty to stand by and save life, at least,
cannot be said to be of strictly légal obligation, because no law bas
yet visited the offender with damages for a breach of it. " Jîeverthe-
less, the obligation of tbe ship not disabled, in cases of collision, to
render ail possible assistance to the injured vessel and to her crew,
bas been recognized as afifecting the pecuniary rights of the parties
when suing in admiralty. In the case of The Celt, 3 Hagg. 321, Sir
John Nicoll, in a suit against the ship that was uninjured, while he
dismissed the libel because it appeared that the collision arose from
no fault of the vessel sued, yet he condemned her in costs and ex-
penses because the master had neglected to render assistance to the
vessel as requested, and after taking her master and orew aboard his
own vessel, had landed them in a state of destitution ou the coast of
Ireland.
The schooner in this case having been sunk immediately tlirough
the fault of both, some provision for her master and crew was neces-
sary. They could not be left to drown or starve. If not returned to
New York, the nearést port, they must hâve been taken to Europe
650 FBDESAL BEPOBTEB.
ând baok, and supported in the mean time. The necessary care of
the master.and crew, upon the sinking of their ship, necéssarily de-
volved upon the Arragon, which was substantially uninjured by the
collision ; and the expenses necéssarily attending such care should
be deemed to bave beenincurred in the performance of a maritime duty,
and not as a mère voluntary charity. Practically, thèse expenses were
unavoidable. They were the immédiate and necessary resuit of the
collision, and conséquent sinking of the schooner; and as the collis-
ion arose from the joint fault of both, thèse charges, which were the
unavoidable resuit of the collision, should be held to. be at the expense
of both. There is no reason why they should be borne by one rather
than by the other. In a court of admiralty, at least, the obligation
to provide for the master and crew of the sinking ship should be re-
garded as obligatory, so far as to entitle the ship rendering assistance
to the other to bring the necessary expense of doing so into the com-
mun account. The Arragon in this case, moreover, was an English
steamer, and by 25 and 26 Viot. c, 63, § 83, failure to rendet such
assistance is declared to be misconduct; and by that act the duty
was imposed upon her master to render to.the other ship and to her
master, crew, and passengers. such assistance as might be practica-
ble, and failure to do this is not only made presumptive évidence that
the collison was by his own wrongful act, but would hâve made the
master liable to hâve his certificats canceled for misconduct. This
statute having thus made the assistance to the crew of the schooner
legally obligatory, there would seem to be no room for doubt that the
expense to which she was put in rendering this assistance should be
held a part of the légal damage arising from the collision. No objec-
tion was made to the mode in which the assistance was rendered. It
seems to bave been the most oonvenient and reasonable that could
bave been adopted; and this item should therefore be allowed.
In estimating the value of the captain's furniture and personal ef-
fects, certain déductions were made by the commissioner from the
eost price, varying on some articles from 10 to 50 per cent., while on
the remainder the market value, at the time of the loss, was allowed.
Where articles bave been in use for a considérable time, the owner
has no right to insist upon the fuU cost price because he may claim
that they are to him as good as new. A reasonable déduction may
certainly be made from the cost of such articles, having référence to
the period and manner of their use, as might be done by a jury in
similar cases in an action at common law. Jones v. Morgan, 90 N.
Y. 4, 10. As regards this and the other items excepted to, I think
the commissioner's report should be conflrmed.
the uaryland. 651
Thb Mabtland.
The p. Smith.
iDUtrict Court, 8. D. New York. January 24, Ï884.)
L CoLi/isioN— RiTBK Navisation— HuaorKG thk Shore— Statotkbv
By the statutes of New York, steam-boats in passing up and down the East
river, from the Battery northward, are bound to go as near as praoticabie in tjde
center of the river, ezcept in going in or out oi their usual berths or landings,
and steam-boats meeting each other in tlie rivers are requirêd togo to tliat side
■which is to the starboard of sucl^ boftt, so as to enable then^ to pass each other
with safety. Meld, the àbo ve statutes forbid steamers to keep close to the shore
on going round éhe Battery either way.
2. 8aMB— RoàNDING BATTEKY—MnTPAIi TaULT.
Where ,two unwieldy steamers, one a tug with Iwo schoQners, Tfere coming
round the Battery in opposite directions so close to theshore that they were ndt
visible to each other in time to avoid a collision, held, bolh in fault for being
too near the shore, and that suck fault in this case directiy coiittibuted to the
collision.
3. Samb— Violation op Statutb. /
Where a violation of the statute does not directiy contribute to the collision,
there being plenty of time and toom for the vessels to avoid eaoh other, semble,
such violation is immaterial.
4. Samb — Cause of Colusion.
Where the steamer M., 240 feet long and 60 feet wide, with square bows,
bound from Jersey City to flarlem river, upon the ebb tide, passed close to the
Battery and CoUided abont,250 feetofC pier 2 with the steam-tug P. B., having
a schooner lashedoji each side in tow, and both steamers had excbanged a sig-
nal of two whistles as soon as they were Visible to each other around the bend,
and no fault was apparent iii the navigation or maneuvering of either from
the time the signais were given, Md, that the cause of the collision w^ that both
were so near the shpre that ihey were not visil)le to each other in time ; tliat
each was alike in fault in this respect, ^nd that both were therefore liable for
the damage to the schooner in tow.
6. Bame— LiiABiWTT oî' Vesskl.
Irrespective of the statutory provisions, the obligations of prudence in navi-
gation forbid close approach to the pièra or slips in rounding the battery. The
common practice in this respect affords no justification, ahd vessels adopting
it do it at théir péril, and must be held liable for the damage when this is tho
proximate cause of the collision.
6. Same — Amekdments to Pleadings— Evideiîcb.
Where a cause of collision is fully presented upon the mérita atid ail the facts
hâve been put in évidence without objection, and there is no question of sur-
prise or désire for further évidence, the cause sbould be determined spon the
merits, as justice requires, and the pléadings be deèmed amended to conform
to the facts proved.
7. Samb — Amendment Allowed— -Costs.
Where the fdcts necessarily known to thelibelant are njsstated te his proc-
tor, 80 that the précise faults, as flhaHy determined, are not stated in the libel,
though charged in one of the ansWers, held, the libel should be deemed amended
and the libeîant recover, but without costs.
In Admiralty.
Scudder é Carter and Lewis C. Ledyard, for libelant.
.B«e5e cf P^ifcoa;, for the Maryland.
W.W. Goodrich, îoviheV.Smiih.
552 FEDEBAIi SEPOBTEB.
Brown, J. Thïs libel was filed to reoover damages for injuries to
the schooner Francis G. Smith through a collision with the steamer
Maryland on the fourth day of May, 1881, in the East river, off pier
2, New York. The Maryland is 240 feet long and 60 feet wide, with
square bows, used for transporting railroad cars between Jersey City
and Harlem river. She is a side-wheel steamer, with double engines,
working independently. She was upon one of her regular trips from
Jersey City, having lef t there at about a quarter before 4 p. m. Af ter
Crossing the North river she passed into the eddy very near to the
Battery wall, and probably within about 200 feet of the south ferry,
the tide being strong ebb. The schooner was in tow of the tug P.
Smith, coming down the East river, lashed upon the tug's starboard
side, and projecting some distance forward of the tug. Another
schooner was similarly lashed to the tug's port side, The mainsail
of the port schooner had been up for some time previous, and about
the time the tug was passing pier 10 the foresail was wholly or partly
raised. The tug was intending to drop the port schooner upon reach-
ing the North river, and go up the river against tide with the other.
The wind was moderate from south to south-east and the day fair.
The libel charges fault upon both the tug and the Maryland in not
keeping ont of the way of each other, and in not having stopped and
backed in time. The Maryland in her answer charges the tug with
the sole responsibility, through an alleged want of sufficient power to
handle the two schooners properly, and for having the sails of the
port schooner raised, whereby, through the wind's being abeam, coupled
with the small power of the tug, they drifted down upon the Mary-
land with the ebb tide, making more leeway than the tug could over-
come, though headed ail the time two or three points ofï shore. The
answer of the tug charges the Maryland with fault, first, in keeping
too near the New York piers, and that she did not change her course
to avoid the tug, and did not slow, stop, and reverse in time. The
pilot of the Maryland testified that when off Staten Island ferry he
saw the tug and schooners apparently off about pier 10, well out to-
wards the middle of the river, and headed rather off the New York
shore towards the southern part of Govemor's island; that he gave
two whistles, to which the tug immediately replied with two, and that
he then starboarded his wheel and stopped bis port engine. Shortly
after, on noticing that the tug, though headed away from the shore,
was rather making towards it and towards the Maryland, he repeated
the signal of two whistles, which was immediately answered with two
from the tug, and that he then reversed the port engine and also the
starboard engine. The answer of the tug avers that the Maryland
was first seen when the tug was off Coenties' slip, that is, piers 6 to 8,
and that the Smith was then well out in the river.
A careful comparison of the testimony compels me to reject entirely
the estimâtes given of the distance of the tug and the schooners from
the Kew York shore as they came past Coenties' slip. AU the testi-
THE HABTLAND. 553
mony agrées that they were headed a little off shore; the tug was
going at the rate of at least two miles through the water, and, with
the strong ebb tide, about six by land. Her sails, with the wind
abeam, would aid the motive power of the tug, while eausing also
some leeway ; but her speed ahead was doubtless more, rather than
]ess, than at the rate of six knots per hour. It could nôt be, there-
fore, over a minute and a half from the time she passed Coenties' slip
until the moment of collision; and the leeway of the tug and sehoon-
ers during this interval must bave been comparatively slight, not over
40 or 50 feet, as stated by one of the witnesses. The précise place
of the collision is, I think, very approximately fixed-throngh the testi-
mony of disinterested witnesses, as well aiS by the witnesses from the
Maryland, particularly the witnesses Clark and Cahill. Their testi-
mony, with other circumstances in référence to the position of the
steamer Connecticut, which I need not hère repeat, satisfy môthat at
the time of the collision the Maryland extendedfrom about abreastofi
pièr 2, back and across the soath ferry, and that she was not over 250
feet distant from the end of pier 2,— probably less than that, — while
the outer schooner was not over 300 feet distant from it. It is im- '
possible for the tug with the schooners to hâve reached this position
while headed two or three points ofif shore, if they were much further
off when opposite Coenties' slip or pier 10. I hâve no doubt, there':
fore, that the Smith, when first seen, was within 350 feet of the shore,
and she was probably intending to go into the eddy, as the Maryland
had done, in rounding the Battery.
There are circumstances whichleadtogreatdoubt,also,whether, when
the two steamers first sighted eaeh other, they were not much nearer
to each other than the estimâtes given in the testimony, From Staten
Island ferry to pier 10 is about 2,000 feet; to pier 2, only about 300
feet. Hence the Maryland, from the point whence her pÛot first saw
the tug, viz., from off Staten Island ferry, to the point of collision,
though she was going at first at a speed of five or six knots in the
eddy as she passed Staten Island ferry, and then slowed down, did
not go ahead much over 300 feet. The time, therefore, between the
first whistles and the collision must hâve been very short, probably
less than a minute. The clerk of the Maryland on bearing the whis-
tles and the bells went at once from bis office forward, a short dis-
tance only, and then he found the schooners but 50 feet distant. The
pilot of the tug testifies that he did not see the Maryland or give bis
first signal of two whistles until he had reached'pier 2, and that the
collision was about 200 yards west of that. I hâve no doubt this pi-
lot is partly in error as to where he first sighted the Maryland, but the
distance of 600 feet apart at the time the first whistles were exchanged
is an average between the évidence of Clark, who estimâtes the dis-
tance apart at 300 feet, and that of the other witnesses on the tug and
schooners, who state that the Maryland was first seen when the tug
was about off Coenties' slip, which was about 600 feet from the place
554 FBDEBAIi BEPOBTBB.
of collision. Theif position enabled thém to state exaiiJily wheiie they
were when the wbistles were blown, aad their testimony is therefore
much moïe reliable on that point than the testimony of those on the
Maryland who oould only estimate the position of the tUg. Taking,
then, the situation of the two vessels as determined upôn thia flnding
of the faets, the Maryland being a boat 240 feet long by 60 wide, in the
eddy, within 200 feetof the shoire ofE Staten Island ferry and heading
for the east abutment of the Brooklyn bridge, and the tug and her
two schooners coming down with a strong ebb tide, about 800 feet off
Coenties' slip, and the two then for the first time seeing each other,
and immediately exehanging signais of two whistles, I am not pre-
pared to find upon the évidence any fault in thé subséquent naviga-
tion of either vessel. The Matyland with her great length would not,
I think, bave been likely to elear the schooners by porting under a
signal of one whistle, had that signal been given instead of the sig-
nal of two whistles. The évidence; ôf the engineer and quartermaster
shows that the port engine was reversed assoon as the first signal of
two whistles was given. This brought the bows of the Maryland,
whioh before were headed a little off shore, about parallel with the
New York shore, but the ebb tide, when near the place of collision,
catching her starboard bow, prevented her swinging f urther inphore;
nor does it seem to me likely if the starboard engine had been re-
versed as Boon as the signal of two whistles was given, instead of the
port engine only, that this would hâve been any more likely toavoid
the collision. The tug and schooners, also, as soon as tiie signal, of
two whistles was given, put their belms hard-a-starboard; but the mo-
tion of the tug was slow through thé water, and ihôagh the schooners
swung a couple of points under a starboard helm, the time was so
short that they could not make any considérable offing to avoid the
Maryland.
If this view be correct, the cause of the collision is.to be sought
further back, for it is manifest that vessels hâve no right to get into
a position where a collision is inévitable, notwith standing propér
maneuvering by both, The charge that the P. Smith was too feeble
in power to handle the schooner, properly ia not sùstained by the évi-
dence, as respects her navigating where there is plenty of room, and
where no quick maneuvering is required; but for quick handhng in
a narrow space, the tow was manifestly too cumbersome for such a
tug, and she was therefore specially bound for this reason to be well
out in the river. Nor can the collision be asoribed to the leeway
eaused by the sails. As I havè said above, the effeet.of this caïuse
would a.t most bé small in the short time that elapaed between the
signais and the Collision, and it would certaiuly be partly, if not
whoUy, oonnterbalanced by the aid which the saiîs would give in in-
creasing the' speed, and- conseqliently the eteerage-way, of the tug
through thè water. The cause bf the collision must, therefore, be
asoribed .either to the failnreof; the vessels to keôp a proper, lookout.
THE MÀRYLAND. - 55S
and to signal eaoh other in Mme; or, if they werean such a situation
as not to be visible to each other earlier, then either one or both ves-
sels were in fatilt for navigating so close to the shore as not to corne
within view of each other in time to avoid the collision. The évi-
dence shows that the two boats exchanged their first signais as soon
as they came in sight of each other, viz., wben the Maryland was
off Staten Island feny and the tug off Coenties' slip, each being
from 200 to 300 feet only away from the piers. It foUows, there-
fore, that the collision arose from both vessels' navigating too near to
the New York shore when approaching and ronnding the Battery in
opposite directions.
Both boats, moreover, were proceeding in violation of the statutes
of the State. By the aet of April 12, 18é8, (é Edm, St. 60,) it is
provided that "ail the steam- boats passing up and down the East river,
between the Battery, at the southern extremity of the city of New
York, and Blackwell's island, shall be navigated as near as possible
in the center of the river, except in going into or ont of the usnal
berth or landing place of such steam-boat." Section 1, tit. 10, c. 20,
p. *683, Eev. St., provides that "whenever any steam-boats shall
meet each other on the waters of the Hudaon river or any other
waters in the jurisdictiou of this state, each boat so meeting shall go
to that side of the river or lake which is the starboard or right side
of such boat, so as to enable the boats so meeting to pass each other
with safety." The tug with her schooners was navigating in plain
violation of the provision first above quoted, as she was far from
the middle of the river. The Maryland, from the time she passed the
barge office, was required by the same statute to be in the middle of
the East river, instead of close to pier 2, {Tke Columbiu, 8 Ped. Eep.
718,) and she was also plainly navigating in violation of the second
provision above quoted. She had crossed the North river from Jersey
City upon a course which, in the traffic about the Battery, her pilot
well knew would in the ordinary oourse of business involve meeting
other craft coming in the opposite direction. The Maryland had no
call or business at the berths or slips along the New York shore, and
by the statutory provisions she was, therefore, required to go around
the Battery well oui in the stream, so that vessels coming in the op.
posite direction oould pass to the right with safety. Her course, how*
ever, was so near to the New York shore as to prevent Other vessels'
going with safety to the right at ail, and it necessarily orowded them
out in the stream to the left, instead of allowing them to pass to the
right. So far as thé statutory provisions are éoïrcerned, therefore,
both vessels were equally in the wrong.
It is true that the practice is common for vessels in passing eîther
way to hug the Battery shore in order to get the benefit of the slack
waterthereon tbeebbtide. Thetestimony wasexplicitj hôwever, that
there is nq usage which gîves this right to the veséèls, going one way
fàther than tothose going the dther way. lî wjjracticed equally by
556 FEDESAL BEPOBIEB.
"vessels goîng in either direction, and in eîther case it is alike con-
trary to the statutes and unlawful, exoept when the vessels are going
in or coming out of their slips . Though vessels be navigating in viola-
tion of statute when a collision occurs, they will not for that reason be
held liable, if this violation did not in any way contribute to the col-
lision. Where vessels, though in unla-wful proximity to the shore, see
each other in time and agrée upon mutual signais, and there is abun-
dant room for either or both to keep out of the way of each other, the
fact that one or both of the vessels were navigating in violation of the
statute will then be deemed immaterial, as not contributing to the
collision. The Fanita, 8 Ben. 1 1 ; Tke B'rederick M.Wilson, 7 Ben. 367 ;
The Delaware, 6 Fed. Eep. 196. But in this case the faots, I think,
Bbow that the vessels, by reason of their neamess to the shore, could
not be seen by each other in time to avoid the collision, and that from
the time they -were seen by each other and their first whistles exohanged
the collision -ff as inévitable. The collision in this instance must.there-
fore, be regarded as the direct and necessary resuit ci their close and
unlawful proximity to the New York shore ; in other words, their un-
lawful navigation in this respect was the direct and sole cause of the
collision. While navigating so close to the New York pievs that they
could not see a half mile along the shore, each vessel also violated
rule 5 of the inspectors' rules, in not giving one long whistle in round-
ing such a bend.
It is no answer to a f ailure to comply with thèse varions rules to
say that the navigation around the Battery is so crowded that thèse
several rules and statutes are no longer practicable or applicable, or
that if followed they would produce confusion. The frequency and
the constancy of the danger arising from the inerease of vessels
makes the need of observing ail thèse rules the more urgent ; nor is
there anything impractioable in keeping well out towards the middle
of the East river in going into it, or in coming out. of it. Both
steamers in this case were about equally unwieldly and incapable of
rapid handling, so as to avoid quiokly any unexpeoted danger-, — the
■Maryland, by reason of her great size; the tug, by reason of her com-
paratively slow motion through the water with two large schooners
attached. Both were, therefore, equally bound by considérations of
common prudence, as well as by statute, and the fréquent adjudications
of the courts, to keep away from the vioinity of the piers and slips.
'Tke E. Ç.Scranton,3 Blatchf. 50; The Monticello, 16 Fed. Eep. 474,
and cases cited; MeFarland v. Selbjf, etc., Go. IT Fed. Eep. 253.
The language of Behbdiot, J., in the case of The ColumUa, 8 Fed.
Eep. 716, 718, is specially applicable hère.
"I hav.e not overlooked the argumentbîfâed où the teatimony in respect to
a «sage for vessels passing up the East river keeping close to the piers in
order to take advantago of the eddy-tide. But nO sUch iisage can be ooun-
tenanced. It is forbidden by the law, and must in every instance be held
illégal by the courts. It would, indeed, be held illégal by the courts if there
were no statute, because of the unnecessary danger of collision creàted
thereby."
THE HABTLAM). MX
Upon the argument it was urged with mueh warmth that the court
should take no notice of faults not specifically alleged in the plead-
ings ; and that in the détermination of the case ail proof s or con-
sidérations not secunàum allegata et probata should be disregarded.
The Rhode Island, Oleott, 505, 611; The Vim, 12Fed. Eep. 906. In
the case last cited the observations of the court were upon exceptions
taken for want of sufficient definiteness in the libels in varions par-
tic ulars. While there can be no différence of opinion in regard to
the proper practice and the policy of requiring earlj in the cause a
definite statement of the faults charged by each, so far as tbey are
known or may be reasonably asoertained, it is as well settled in the
admiralty practice as it is in the practice under the state Code, that
where the cause is fuUy presented upon the merits, and ail the f aots
hâve been received in évidence without objection, and thei-eis no sug-
gestion of surprise, or désire to put in further évidence, the cause
should be determined upon the merits of the whole case, acoording
as justice requires, and that the pleadings should be deemed amended
to conform to the facts proved. This waé clearly laid down in the
case of The Syracuse, 12 Wall. 167, 173, and has béen repeatedly
applied. The Quickstep, 9 Wall. 670; The Clément, 2 Curt. 363,
where Cubtis, J., discusses this question at large; The Lady An-rie,!
Eng. Law & Eq. 674; The Oder, 13 Pbd. Eep. 272, 283; The Rhôde
Island, 17 Fkd. Eep. 564, 660.
In this case the answer of the tng distinctly sets up as a fault that
the Maryland was hugging the New York shore. The Maryland wàs,
therefore, fuUy apprised of this charge; but the libèl does not chargé
this as a fault, and, except the charge that the vessels did not keep
a proper look-out, and slow and baek in time, neither of which
charges do I find sustained, the libel only avers that neither vessôl
kept out of the way of the other, — a gênerai charge which eould not
hâve been intended or understood to mean an unlawfùl proximity to
the shore. The collision seems to me plaihly the resuit,' and solely
the resuit, of the dangerous and illégal practice of navigating close to
the Battery shore, instead of keeping off in the stream, as required by
law. For this, both are eqUally answerable. Ail vessels follôwing
this course must be held to do so ât their péril, and be held liable
for the damages, when this proveS to be the proximate cause of the
collision. The Unele Abe, 18 F^J>. Esv. Q10.
The libelant is entitled to the nsnal decree against both. But as
the facts in regard to this spécifie fault were suffioiently known to
those on the libelant's Bchoôner, and ought to hâve been made kâowb^t
to the libelant's pfoctora and specifically pleaded in the libel as a
fault, eosts will be withheld, in order that no encouragement may
be given to loose pleadings, or to any omisiaion to state clearly and
specifically ail the material facts, showing how and why the coUisioti
came about, and the partieular faults on acoount of which a recov-
ery is sought, in accordance with the longr-established practice in
admiralty causes.
'^£8 FBSSBAL ,££I>0BTI:B.
TJhe Émpibb.
{DiêMet Court, E. D. Miehigan. Febniary 18, 1884.)
Admikaltt— Jttby Trial^Rsit. St. ^ 566— Verdict.
The verdict of a jnry, in an admiralty cause arising upon the Isikes, and tried
by jury pursuanttoRev. 8t. § .568,ismerelyadvisory,aadmay bedisregarded by
the court, if , in the opinion of the judge, it fails to do substantial justice. The
practice of callîng nautical assessors approved.
In Admiralty. On motion for a new trial.
This was a libel for damages sufiered by the barge James F. Joy,
wbile in tow of the steam-barge Empire, and by reason of her alleged
négligence. The case was tried by a jïiry, pursuant to Eev. St. |
666, and a verdict returned for the libelant in the sum of $200. Mo-
tion was made for a new trial, upon the ground that there was na
évidence to juatify the jury in rendering a verdict for so email an
amount.
H. H. Swan, for the n^ption.
James J, Atkinson, contrq,,
Beown, J. By Rev. St. § 566, "in causes of admiralty and mari-
time jurisdiction relating to any matter of contract or tort arising
upon or concerning any vessel of 20 tons burdeu and upwards, en-
rolled and licensed for the coasting trade, and at the time employed
in the business of commerce and navigation between places in dif-
férent status and territpries upon the lakes, and navigable waters Con-
necting the lakes, the trial of. issues of fact shall be by jury when
either party requires it." This somewhat unfortunate clause was
introduced by the revisors intp the statutes from a hasty tiictum of
Mr. Justice Nelson in the case of The Eagle, 8 Wall. 25. In de-
livering the opinion of the court he remarked "that we must there-
fore regard it (the act of 1845) as obsolète and of no efiect, with the
exception of the clause which gives^ to either party tbe right of trial
by a ]ury when requested, which is rather a mode of exôrcising juris-
diction than any substantial part of it." The history of the incor-
poration of ihie dictum into the Eevised Statutes is fully given in the
çm6 oi Gillett v. Pierce, 1 Brown, Adm. 553. But, whatever be the
origin of the clause in question, there is no doubt that it is the law
of the land and must be respected as such. There bas been great
idifficulty, however, in determining in what cases and in what manner
fit iatobe given effect. It créâtes what appears to be a very unjust
lâiscïimination in favor of the partiçular classes of vessels and causes
lOf action enumerated in the act. Why it shouldi be given in actions
of contract and tort, and denied in those of salvage, gênerai average,
an4 prize, and why it should be limited to American vessels plying
between domestio ports, and denied tp ail foreign, vessels, and io
American vessels -engaged. in foreign trade, it is impossible to con-
iCeive. The Eagle, supra.
THE EMPÏKE. ' 658
A still more serious objection to thé clause as it now stands arisé»
from the fact that no provision is made fot the re^ew of cases s»
tried. If the same weight is to be given to the verdict 6f a jury im-»
paneled under this act, that is given to a' verdict in a common-Iaw
case, then it clearly falls within the inhibition contained in the seventh;
amendaient to the constitution^ that "no fact tried by a jury shall be
otherwise re-examined in any court of the United States' than aè-'
cording to the rules of the eommon law. '" As there is ho provision;
for a writof error in this class of cases, the defeat«d pàrty wouldbô
remédiless. This qnestioa was, however, passed upon in the. case of
Boyd V. Clark, 13 Pbd. Rep. 908, in which the defeated païty toofe
both an appeal and writ of error to the circuit court, Mrv Justice
Matthews, before whom the case was argued, dismissed theiwrit of
error and allowedthe appeal, holding that the fact that the base was
tried by a jilry made no différence in determining the remedy tO'
which the defeated party was entitled. He further observed that the
provisions regarding trials by jury, in the seventh amendment,applies
only to coamon-law juries, and that, upon appeal, admiralty cases
tried by a jury in the district court stand for trial in the circuit court
precisely as if they had beeu tried by the district judge in perspn.
Thèse objections to the act as it now stands, and the further one
that there is probably no class of cases which a jury, as ordinarliy
constituted, is so unfitted to deàlwith as actions for torts upon navi-
gable waters, hâve been deemed so serious that the practice oï tryîng
admiralty causes by a jury has not obtained in the district court to
any extent. This case, anà.ih&tot Boyd v. Clark, supra ^ are, ^so far
as I am informed, the only actions of tort tri^d by jury in this dis»;
trict during the almost 40 yearsin which the act has been in force;
In lieu of this method of procédure, we hâve for several years pasty
in analogy to the trinity master System obtaining in the English court
of admiralty, adopted the practice of calling to the assistance of the
court, in ail difScult cases involving négligence, two experienc'ed ship-
masters, who sit with the judge during the argument and give their
advice upon the questions of seamanship or the weight of testimony.
I believe a somewhat similar practice has obtained in some of the
other district courts. The Emily, Olcott, 132. TUe i2i»ai, 1 8pr.
128. The practice appears also to hâve- recéived the sanction of the
suprême court. The lîypodam'e, 6 Wall. 216-224; The City of Wash-
ington, 92 U. S. 31-38. I havé frequently derived gréai assistance
from the advice of nautical assessors myself, and hâve found this a
most satisfactory and expéditions method of trying thèse cases.
The question still remains to be decided, however, what .'weight wô
shall give to the verdict of a jury impaneled under section 566. Thé
question has never been direotly decided ; but in view of the opinion
in Boyd v. Clark, supra, that their verdict is not binding upon the
circuit Court upon appeal, it seems to be a logical inference that it
ought to be regarded in this court only as advi^ory, There isno reà-
560 FEDEBAL BEPOBTEB.
son for giving it greater weiglit in one court than in the other. In
chancery cases the province of the juryis said to be to "enlighten the
conscience of the court," and as the court of admiralty is but the
chancery of the seas, I see no reason why we should not give it the
same efifect hère.
In the case of Lee v. Thompson, 3 Woods, 167, a supplemental
libel was filed in the district court, upon which there arose a question
as the validity of a certain assignaient. The court made an order
that the matter be tried by a jury, and it was tried accordingly.
Upon appeal to the circuit court, Mr. Justice Bbadley held that, al-
though there was no power in the court of admiralty to try causes by
jury, it was nevertheless proper to submit a question of fact to them
for tlieir opinion and advice ; but that their décision was, after ail,
not conclusive, and the matter must be finally submitted to the judge
of the court; citing Dunphey v. Kleinsmith, 11 Wall. 610.
In Basey v. Gallagher, 20 Wall. 670, a provision in a statute of
Montana, deolaring that an issue of fact "shall be tried by a jury,
unless a jury trial is waived," was held not to require the court in
equity cases to regard the ândings of the jury as conclusive, though
no application to vacate the findings be made by the parties, if, in
the judgment of the court, such findings are not supported by the
évidence. In delivering the opinion of the court Mr. Justice Field
observed that "if the remedy sought be a légal one, a jury is essen-
tial, unless waived by the stipulation of the parties; but if the remedy
sought be équitable, the court is not bound to call a jury; and if it
does call one, it is only for the purpose of enlightening its conscience,
and not to oontrol its .judgment. * * * Ordinarily, where there
bas been an examination before a jury of a disputed fact, and a spé-
cial finding made, the court will foUow it. But whether it does so or
not must dépend upon the question whether it is satisfied with the
verdict. Its discrétion to disregard the findings of the jury may un-
doubtedly be qualified by statute; but we do not find anything in the
statute of Montana, regulating proceedings in civil cases, which affects
this discrétion."
While the language of the section (566) is peremptory, that either
party is entitled to a jury trial, it is no more so than was the statute
of Montana; and yet, notwithstanding the absolute right to a jury
trial given by this statute, it was held that the jury was merely ad-
visory. See, also, Dunn v. Dunn, 11 Mich. 284.
In the case under considération the verdict of the jury was not con-
sonant with any theory upon which the case was tried. If the jury
had found there was no négligence, it was their duty to bave re-
tumed a verdict for the défendant. If they found the tug was in fault,
they should hâve returned a verdict for the damages suffered by the
libelants, which the testimony showed were not less than $800 ; and
if demurrage were included, were nearly $1,500. There was no évi-
dence in the case to justify a verdict of $200; and it must be set
aside.
WBSTBBN UNION TEL. CO. V. NATIONAL TEL. CO. 561
Western Union Tel. Co. v. National Tel. Uo. and otûers.
[Circuit Court, S, D. New York. March 6, 1884.)
1, JtmrsDicTioN OF Fbdkkai, Coubtb — Right of Removal— Case învolving
FedbhaIi Law.
A case may be removed to the fédéral courts whenever rights of the par-
ties are alleged to dépend in any way upon an act of congresa, even though the
act is only set up by way of défense, and though other questions not of a féd-
éral character enter into the controversy.
2. Same— Sbpakatb Contbovbksy bbtwben Citizbhs of Dif^'erent States.
Boyd V. OUI, 19 Fed. Rbp. 145, followed;
Motion to Eemand.
D'dlon é Swayne,, for Western Union Tel. Co.
Dorsheimer, Bacon é Sieele, for Nat. Tel. Co. and B. & 0. Tel. Co.
P. B. McLennan, for N. Y., W. S. & B, Ey. Co.
Wallacb, J. Whether the cômplainant acquired any exclusive
right as against the telegraph companies, the défendants, to build or
maintain its lines upon the lands of the railway companyj whether
it acquired any easement not subject to a co-extensive easement in
favor of the other telegraph companies; and whether any easement
it may bave acquired is of such character^as would entitle it to com-
pensation before the other telegraph companies can occupy the lands
of the railway eompany with their lines, are ail questions which may
dépend upon the force and effect of -the act of congress of July 24,
1866, and arise imder the issues presented by the pleadings. The
su t was therefore properly removed from the state court as a contro-
versy arising under the laws of the United States. Cases arising un-
der the laws of the. United States, within the meaning of the removal
act, are -uch as grow out of the législation of congress, whether they
constitute the right, claim, protection, or défense, in whole or in part,
of the party by whom they are asserted. If a fédéral law is to any
extent an iugredient of the controversy by'way of claim or défense,
the condition exists upon which the right of removal dépends, and
the right is not impaired because other questions are irivolved which
are not of a fédéral character, Cruikshank v. Fourth Nat. Bank, 16
Fed. Ebp. 888; Mayor v. Cooper, 6 Wall. 247-352; Railroad Co. v.
Mississippi, 102 U. S. 135. The motion to remand is denied.
The défendant thé Baltimore & Ohio Telegraph Company, bas also
removed the suit upon its separate pétition, alleging that there is a
controversy which is wholly between it and the cômplainant citizens
of différent states. Within the récent décision of this court in Boyd
V. Gill, 19 Fed. Eep. 145, such a separate controversy is not disclosed
by the pleadings. See alsû Peterson v. Chapman, 13 Blatchf. 395.
So far as the removal bas been effected upon this pétition the suit
should be remanded.
v.l9,no.8— 36
662 ÏBDEBAIi BEPÔBTBB.
CàbdwblIi ». American Eivee Bridob Co.
{Circuit Oowt, D. Ualifornia. March 8, 1884.)
ÎTAnflABLE RrvEBS— Unsettled Question oï State and FedebaIi Powbrs.
The suprême court of the United States, in the case of Eseanàba Oo. ▼.
Chicago, 2 Sup. Ct. Rep. 187, détermines that the control of " rivers whollj
within the bounds of a state " ia held by the législature thereof , until the con-
gress of the United States passes some act assuming control for the national
governmeut. in the Wheding Bridge Voie, 13 How. 61,9, the same court held
that the mère confirmation by congress et a compact theretof ore made between
Kentucky and Virginia, relative to keeping open the Ohio river, 'was tanta-
mount to an act assuming such control. Under thèse two décisions, quœre
whether such navigable rivers of California are within the control of that state,
or hâve been removed theref rom by the act nt congress admitting it into tha
Union, which act coiitains thèse words : " Ail navigable rivers within the
state of California shall be common highways and forever free, as well to the
inhabitants of that state as to tbe citizens of the United States, without any
tax, duty, or impost therefor." Decided {pro forma) the latter.
Eseanàba Go. v. Chicago, 2 Sup. Ct. Rep. 187, and other cases reflectin|; on the
matter in discussion, noted and commented upon, and their varions distinguiah-
ing points mentioned.
In Equity.
Scrivener é McKinney, for complaïnant.
R. 0. d W. H. Beatty and J. B.Haggin, for défendant.
SAwyBR, J. This case is clearly within the rule as laid down in the
Wallamet Bridge Case, 7 Sawy. 127 ; S. C. 6 Fbd. Ebp. 326, 780. If
that case can be sustâined in the broad terms of the rule stated, then
the demurrer in this case should be overruled. Since that décision
was rendered, the suprême court of the United States bas deoided the
case of Eseanàba Co. v. Chicago, 107 U. S. 679, S. 0. 2 Sup. Ct. Eep,
185, which défendant insists overrules the prinoiple announced in the
Wallamet Bridge Case; that, under the clause of the aot admitting
Oregon into the Union, the state has no power to authorize the con-
struction of bridges Over the navigable waters of the state which shall
materially obstruct their navigation. It must be admitted, I think,
that there is language in the opinion that favors that view ; and I am
by no means certain that the court did not in tend to go as far as its
broadest language indicates. It is sought to distinguish this case
from the Chicago Bndge Case. If it can be distinguished, it must be
on the foUowing grounds: In the Bldckbird Creek Case, 2 Pet. 245,
arising in Delaware, the Schuylkill Bridge Case, li Wall. 442, in
Pennsylvania, and ail others sinco decided, foUowing the décisions in
those cases, it was held that congress, under its authority to regulate
commerce and establish post-roads, had power to control, for those
purposes, the internai navigable waters of the yarious states ; that
as soon as congress legislates in. regard to any such navigable waters,
its power becomes exclusive and the states cannot afterwards author-
ize any material obstruction to their navigation; but, till congress
acts, the législature of any state has the power to authorize the ob-
OARDWELL ». iMEBIOAN BIVEB BRIDGE 00. 663
sfrucfîon oî any navigable waters within its bordera, by the érection
of bridges, dams, or otber structures for the convenience and advan-
tage of commercial intercourse. It was held, with respect to the
navigable waters of Delaware and Pennsylvania, that congress had
never acted, and, oonsequently, the législation of thèse states author-
izing the obstructions oomplained of was valid.
The question, tberefore, is, has congress acted, virith référence to the
navigable waters of Califomia, by legislating upon the subject, in suoh
sensé that its control has superseded the power of the state législature
and become exclusive ? If so, then the case is distinguishable from
any of the cases, other than the Wheeling Bridge Case, before decided
by the suprême court. If congress has so acted, that législation is
found in the act admitting California into the Union, which aot pro-
vides "that ail the navigable waters within the state shalX be common
highways, and forever free, as well to the inhabitants of said state as
to the oitizens of the United States, without any tax, impost, or duty
therefor." 9 St. 452, 453. How can the American river be a "com-
mon highway," or how can it be "free" to "the citizens of the United
States," or "the inhabitants of the state," with a low bridge aoross it,
without a draw, and so constructed as to preclude ail navigation by
steamers or vessels ? To be a common highwa.y, or to be free to ail
to use as such, involves a capacity to be practicaUy used as a highway,
and such capacity is wanting where there is an impassable barrier or
obstruction. Tbis provision is a law of congress, and it is valid, not
as a compact between the United States and the state of California,
but as a law of congress, passed by virtue of the constitutional power
of congress to regnlate commerce among the states and 'épith foreign
nations, and to establish post-roads. Pollard's Lessee v. Hagan, 3
How. 224, 225, 229, 230; Wheeling Bridge Case, 13 How. 566; Min-
ing Débris Case, 18 Fkd. Eep. 753. What does this provision of the
statute mean? Can theré be any reason to suppose that congress in-
tended aUything else than to make or continue the navigable waters
of the state, by virtue of its power to regulate commerce, practical free
highways, and to take away the power of the state to destroy or whoUy
ôbstruct their navigability? Had nothing been said upon the sub-
ject in the act of admission, but subsequently, after the admission of
California into the Union "on an equal footing with the original states
in ail respects whatever," congress had passed & sepatate, indépend-
ant act, with no other provision in it, providing "that ail the navigable
waters within the state of California shall be common highways, and
forever free, as well to the inhabitants of said state as to the citizens
of the United States, without any tax, impost, or duty therefor," would
anybody suppose that congress, by the passage of such an act, under
the circumstances indicated, could bave any other purpose than to
take control of the navigable waters of the state for the pnrpose of
preventing any interférence with, or obstruction to, their navigability,
or "so far as might be necessary to insure their free navigation'?"
564 FEDEBAIi BEFOBTEB.
Or w'ould it be seriously doubted that congress had acted opon the
subject-matter within the meaning of the terms of the décisions in
the Blackbird Creek and Schuylkill Bridge Cases mentioned ? If such
would be the construction in an independent act passed subsequently
to the admission of the state, it must be the construction of the
same language as found in the act of admission. If such is not the
purpose of this provision, it would be difficult, I think, to détermine
what the purpose is. Following the direct décision upon this point in
the Wheeling Bridge Case, 13 How. 56.5, 1 had no difficulty in concur-
ring withthe district judge in the ruling that a similar provision in
the act admitting Oregon into the Union constituted législative action
by congress upon the subject-matter, of such a character as to with-
draw it from the jurisdiction of state législation.
In the Chicago Bridge Case, supra, the court still recognizes the
power of the national government to control the navigable vraters of
the several states, It says :
"The power vested in the gênerai government to regulate interstate and
foreign commerce involves the control of the waters of the United States,
which are navigable in f act, sofar as it may be neoessary to insure free nav-
igation, where, by themselvea or their connection with other waters, they
form a continuous channel for commerce among the statea or with foreign
couiitries." 107 U. S. 682; S. C. 2 Sup. Ct. Rep. 185.
The question, then, is whether the provision quoted from the act
of admission is législation by which congress takes control of the
navigable waters of the state, "so far as it may be necessary to
insure their free navigation;" and whether there can be a "common
highway," or "free navigation," where the passage of steamers or
other vessels is absolutely obstructed by impassable barriers thrown
across the channels of waters otherwise navigable, in fact. In the
case of the state of Illinois, neither the act authorizing the inhabi-
tants to form a state government, (3 St. 428,) nor the resolution ad-
mitting the state into the Union, (Id. 526,) contains the provision, or
any provision of a character similar to that, found in the acts admit-
ting California and Oregon into the Union. Both the act and the res-
olution relating to Illinois are silent upon the subject, and I am not
aware that there is any subséquent législation on the subject affect-
ing the status of Illinois. In the Chicago Bridge Case, the suprême
court seems to regard the provision of the ordinance of 1787 as in-
operative after the admission of Illinois as a state. Says the court :
"Whatever limitation upon its powera as a government, while in a terri-
torial condition, whether from the ordinance of 1787 or the législation of
congress, it ceased to hâve any operative force, except as voluntarily adopted
by her, after shé became a state of the Union. On her admission she became
entitled to and posSessed ail the rights and dorainion and sovereignty which
belonged to the original states. She was admitted, and could be admitted,
only on the same footing with them. The language of tlie resolution admit-
ting her is ' on an equal footing with the original states in ail respects what-
ever.' 3 St. 536. Equality of constitutional rîght and power is a condition
of aîl the states of the Union, old aind new. Illinois, therefore, as was well ob-
CARDWEIiL V. AMSBICÀN BITBB BBIDQE 00. 565
served by counsel, could afterwards exercise the same power orer rivers
within her limita that Delaware exercised over Blackbird creelc'and Penn-
syivania over the Scliuylkill river." 107 U. S. 688, 689; S. 0. 2 Sup. Ct.
llep. 185.
There being no législation by congress, then, assuming the eontrol
of the navigable waters of Illinois, there was nothing more to pre*
vent législation by the state in regard to the navigable waters of Illi-
nois than there was to prevent législation by the, states of Delaware
and Pennsylvania. But I do not understand it to be held, or inti-
mated, that congress cannot, by législation in the interest of Inter-
state commerce, take eontrol of any one, or ail, of the navigable
waters, either of Illinois, Delaware, oï Pennsylvania. Only it bas
not yet done so. I suppose congress might take eontrol of any bne
navigable river by name, as the Sacraraento, for the purpose of facil-
itating Interstate commerce, or it might take eontrol, generally, of ail
the navigable waters of any particular state, without référence to the
waters of other states, and there might well be spécial reasons, mak-
ing it désirable with référence to some particular waters, or sortie
particular states, which are not applicable to other waters, or other
states. I do not understand that spécial législation as to particular
rivers or particular states, not applicable to others, would affect the
"constitutional right or power," or the equality, of the states in any
particular. Ail of the states are alike equally subjeet, at any and
ail times, when congress sees fit to act, to the power of congress to
"regalate commerce among the states" and with foreign nations, and
the power to "establish post-roads" within their several borders and
over their several navigable waters. But the régulation of commerce
on the waters of, and establishment of post-roads in, some states, be-
f ore it is done on the waters of or in other states, does not afifeot their
constitutional status of equali'y. Congress may take its own time
and occasion to regulate the navigable watera of a state without
affecting its constitutional condition of equality. I suppose congress
might now, by an act duly passed, apply the provision in the aets of
admission of Oregon and California to Illinois, Delaware, and Penn-
sylvania — -to any one or ail of them; and if it should do so, it
would seem that there ought not to be any doubt that the object would
be to take exclusive eontrol for the beneflt of commerce, and to sus-
pen4 the power of régulation, or at least of obstruction and destruc-
tion, by the states. But until some législation of the kind is had,
those states concerning whose waters congress bas not legislated,
under the décisions referred to, may themselves legislate upbn the
subjeet. If the provision in the California act of admissioù is légis-
lation taking eontrol of the navigable waters of the state fof thé bene-
fit of commerce, then congress bas legislated in référence to the
navigable waters of California, while it bas not done so with référ-
ence to the navigable waters of Delaware, Pennsylvania, and Illi-
nois ; "and, in this respect, California and Oregon stand upon a footing
566 ., FEDERAI) éSPOETEB.
entirely différent from that of those states, and the décisions as to
them are hiapplicable. The foregoing observations indicate the dis-
tinction, if àny sound distinction there be, and it seems to me that
there is, between this case, the Wallamet Iron Bridge Case, and the
Wheeling Bridge Case, and those other cases cited, already decided by
the suprême court. If the distinction is not sound, then it appears
to me that the Wheeling Bridge Case must also be regarded as over-
riiled, although the suprême court does not expressly indicate any in-
tention to overrule it.
There is an intimation, however, in the opinion of the Chicago
Bridge Case, not necessary to the décision of the case upon the other
views expressed by the court, that the provision of the ordinance of
lîSÎ, corresponding to the provision in question in the acts of admis-
sion of Oalifornia and Oregon, if in force, would not affeot the ques-
tion. 107 U. S. 689; S. C. 2 Sup. Ct. Bep. 185. If this bè so, then
the distinction referred to is of no practical conséquence. But the
bridges, and other obstructions referred to as illustrations f oUowing this
intimation, vrere ail draw-hxidges, or other partial obstructions, while
the bridge now in question is an absolute, unqualified, entire obstruc-
tion to the navigation of the river. In view of thèse intimations,
and other gênerai observation in the opinion of the court, and not
feeling quite certain as to how far the suprême court intended to go
on thèse questions, and not wishing even to sèem to disregard the
décisions of the suprême court, I ehall, for the purposes of this case,
Bustain the demurrer and dismiss the bill. The bill présents the
case fuUy, and it will be much better for ail parties to bave the effect
of the provision of the aot of admission determined now before going
to the expense of a trial. As the complainant bas already submit-
ted to the obstruction for many years, the right, I think, should be
finally determined on appeal, before an injunction should be decreed.
The suprême court does not appear to me to bave considered care-
fully, or finally determined, what the purpose and efiect of the pro-
vision in question in the act of admission is. It must bave some
objeet, and if that object be not to protect and préserve the naviga-
bility of those waters against obstructions équivalent to destruction
by authority of the state, what was the purpose ? The f act that the
provision is in the act of admission, instead of in subséquent inde-
pendent législation, cannot affect its construction, or its force and
effeet. But' for the observations in the Chicago Bridge Case, which I
think nnnecessary to the décision, and believing that congress had
acted upon the suhject, I should hâve followed the ruling of the cir-
cuit court in the Wallamet Bridge Case, and what I understand to be
the décision in the Wheeling Bridge Case, and overruled the demurrer.
I do not wish to be regarded as having changed my own views upon
the rulings in i\\&' Wallamet Bridge Case. I still think it similar to
the Wheeling Bridge Case, and distinguishable from any other cases
hitherto decided by the suprême court brought to my attention. I
UNITED STATES V. O'NEILL. 567
still think the decree in that caaa correct, où th« ground that congress
bas acted upon the subjedt, also on other grounds than the point dis-;
cussed in this case. But the' case will be apipealed, aild if the circuit
court was wrong, the rights' of the parties will be finally settled by
the suprême court. I ohly Write this opirtîôn to indicate upon what
distinction, if any, the case I suppose should be taken out of the dé-
cision of the Chicago Bridge Case, with the hope that the attention df
the suprême court will be specially directed to that supposed distinc-
tion.
United StaTes V. O'Nbill and otùers.
(Oircuit Court, É.D. Witeomin, Pebraary 5, 1884.)
1. SuBETYSHip — Altération of Instrument — Discharoe.
When, after a bond had been sighed by two sureties witl the understanding
berween them and the obliger and obhgee that it was to be signed by à third
surety whose name was written in the bond, the nanie of the third sutety was
altered in the body of the instrument, with the knowledge of the obligée, by
the substitution of a différent surety, who then signed the bood, héid, that the
two sureties were dischargéd^
2. IntbhnaIj Rbvenoii— Constrtjotion of Rev. 8t. < 3182.
Under section 3182 of the Rèvised Statutea, the commissioner, in makinga're-
aâsessment upon distilled spirits for the purpose of rectifying an error, is not
confined to a period of 15 mohths laat past. ' ,
3. Statcte — Time dp TaKing Effbot — Assessmént — Validitt,
A statu te took eftoct March 3d, changing the rate of duty upon spirituouB
liquors f rom 70 cents to 90 ceqts. An assessmént was made for a period previous
to and including March 3d at 70 cents. Held, that though the statute was
in force during the wholè of March 3d, so that the rate for that dàyshould
havebeen90 cents, the tax-payer could not on that account dispute the validity
of the assessmént.
4. AssBssj(iKNT8 FOR 8amk Period — Validitt Prestjmed.
Two assessments, covering partially the same period, will be presumed to be
for différent liquors till the «ontrary is shown.
6. AcTroN UPON Bond— Allégations of Complaint.
An action upon a bond, conditioned upon the payment of an assessmént, will
not f ail becàuse the complaint does not set forth the whole of the assessmént.
This was a suit on a distiller's bond. The bond was exeouted by
the défendant O'Neill a's principal, and by two of the other défend-
ants as sureties, April 30, 1874:, and covered the period from May 1,
1874, to May 1, 1875. The complaint set oUt the conditions of the
bond, and then alleged that thesé conditions Were broken, in this:
that O'Neill failed to pay the internai revenue tax due arld payable
on 15,344 gallons of distilled spirits, distilled by him at his distillery"
from the first day of May, 1874, to and including the thirty-first day
of December, 1874, amouhting to $10,740.80, and on 29,440.40 gal-
lons of distilled spirits distilled by him from December 1, 1874, to
and including March 3, 1875, amounting to $20,608.28, and also on'
30,873.36 gallons of distilled spirits, distilled froto March 4, 1^75, to*
568 FEDERAL KEPOETEB.
and including June 30, 1875, amounting to $27,786.02, making an
aggregate sum alleged to be due to the United States of $59,135.10.
The complaint further alleged that the commissioner of internai rev-
enue assessed on the monthly list bf November, 1875, against O'Neill
a tax for the several amounts aforesaid, which assessment was duly
returned to the coUector, who demanded payment, which was re-
fuôed. Judgment was therefore asked against the several défendants
for the amount of the penalty of the bond, namely, $25,000. The
case was tried by the court without a jury. The proofs, oral and
documentary, were volutninous, and numerous points bearing upon
the validity of the assessment and the alleged liability of the défend-
ants were discussed at the bar. The défendants Stowell and Walsh,
as sureties on the bond, majde a spécial défense solely applicable to
them, and which, if maintained, would still not relieve the défend-
ant O'Neill, nor the surety, John B. Eeynolds, if O'Neill's liability as
the principal in the bond was established. That part of the opin-
ion of the court which covers the questions of law involved in the
case is as follows :
G. IV. Hazelton, for the United States.
N. S. Murphey, for défendants.
Dyeb, J. The bond was prepared April 30, 1874, in the office of
the collecter of internai revenue. The written part of the instrument
is in the handwriting of one Sherman, who at that time was a deputy
in the office. As originally drawn, the- names of John M. Stowell,
Patrick Walsh, and Hugh P. Reynolds, with their respective rési-
dences, were written in the body of the bond. This makes it manifest
that the collector understood that Hugh P. Reynolds was to sign the
bond as one of the sureties. The bond was signed, as thus drawn,
by O'Neill, Stowell, and Walsh, in the collector's office, on the day of
its date. The testimony satisfactorily shows that it was the distinct
understanding between O'Neill, Stowell, and Walsh that Hugh P.
Eeynolds should be a co-surety on the bond; and I think it was com-
pétent for the défense to show this, in view of the fact that the face
of the bond as drawn by the collector indieated that Hugh P. Rey-
nolds was to sign the bond as one of the sureties, and that this must
hâve been so understood by the collecter. There is a dispute upon
the question whether the bond, after its exécution by O'Neill, Stowell,
and Walsh, remained in the custody of the collector, in expectation
that Hugh P. Reynolds would come in and sign it, or whether O'Neill
was permitted to take the bond away for the purpose of getting Eey-
nolds' signature thereto. It seems most probable that the collector
retained the custody of the bond; but whether this be so or not, is not
in my opinion very material. At ail events, there was such delay in
procuring the signature of Hugh P. Eeynolds — in conséquence, as the
testimony tends to show, of his absence — that the collector became
urgent in his requirement that the exécution of the bond by a third
surety should be completed. Thereupon O'Neill proposed to the col-
UNITED STATES ». o'nBILIi, 569
lector that John B. Keynolds shoùld be substituted as a surety in
place of Hugh P. ; and upon the représentation of O'Neill that John
B. Eeynolds was as responsible, peeuniarily, as Hugh P., and that
the other sareties would be satisfied with the proposed substitution,
tbe colleotor caused the word and ietter "Hagh P.," where they oc-
curred in the body of the bond before the name Eeynolds, and the
résidence of that person as written in the bond, to be erased, and sub-
stituted therefor the name of John B. Eeynolds, and a description of
bis résidence. Thereupon John B. Reynolds signed the bond as the
third surety, and the testimony tends to show that this was done on
the twenty-fifth day of June, 1874. Of thiserasure in the bond, and
substitution of John B. Eeynolds for Hugh P. Eeynolds, the proofs
positively show the défendants Stowell and Walsh knew nothing un-
til this suit was begun in 1876. Thus it appears that when Stowell
and Walsh signed the bond they understood and expected that Hugh
P. Reynolds was to be a co-surety with them ; that it must bave been
also so understood by the coUector, because he had drawn the bond
acoordingly; that 8ubsequently,without Consulting Stowell and Walsh,
and without their knowledge, the coUector, by arrangement with
O'Neill, made the change in the bond and permitted the substitution
of sureties, which hâve been stated. Was not this sueh an altération
of the bond, and such an unauthorized déviation from the original
understanding of ail the parties, as precludes a recovery against
Stowell and Walsh ? I am of the opinion that it was.
On the baek of the bond there purports to be an acknowledgment
of the exécution of the bond by ail the parties, — O'Neill, Stowell,
Walsh, and John B. Reynolds, — dated June 25, 1874, before Sherman,
deputy colleotor. If this acknowledgment was in fact taken, it must
bave been after John B. Eeynolds signed the bond, and in that case
Stowell and Walsh would be elearly precluded from objecting to the
substitution of John B. Eeynolds for Hugh P., and to the change in
the body of the bond, because it would then be a conclusive pre-
sumption that they knew or ought to hâve known at the time of the
acknowledgment of such substitution and change. But both Stowell
and Walsh testify with great positiveness that they never acknowl-
edged the exécution of the bond. Their testimony upon that point ia
not overcome by any proof to the contrary on the part of the govern-
ment. Sherman eannot be sworn because of mental ineapacity. The
testimony of the colleotor, so far as it was thought competentior him
to speak upon the subject, is not adéquate to meet the positive affir-
mations of Stowell and Walsh.
The certifieateof acknowledgment is not conclusive, but oulj prima
fade évidence of what it states. It may be shown to be untrue. Of
course, the évidence to overcome it should be strong and convincing.
"While a certifieate of acknowledgment to a conveyance establishes
a prima f acte case that the signature of the person purporting to hâve
executed the conveyance is genuine, this presumption will not prevail
670 FEDERAL EBPOBTEB,
against positive évidence to the contrary." Borland v.Walrath, SS-
lowa, 130. See, also, Paxton v. Marshall, 18 Fed. Eep. 361.
The gênerai proposition of iaw in relation to the liability of sureties
laid dqwn by Mr. Justice Story, in Miller y. Steicart, 9 Wheat.-. Î03,
is elementary. -He says ;
"Nothing 6an be clearer, both upoh prineipîe and autUority, than tho doc-
trine that tb,e liability of a surety is net to be extended by implication beyond
the tenns df bis contract. ïo the extent, and in the manner, and under the
ciréumstanees pointed out in his obligation, he is bound, and no further. It
is net suiiicieat that he may sustain no injury by a cliange in the contract, or
that it may even be for his benefit. He has a right to stand upon the very
terms of his contract, and if he does not asseut to any variation of it, and a
variation ,is made, it is fatal."
There ia a class of cases, many of which hâve been cited by the
learned eounsel for the governuient, in which it is held that a bond,
perf ect on, its face, apparently duly executed by ail whose names ap-
pear thereto, purporting to be eigned and delivered, and actually de-
livered withoat.a stipulation, cannot be avoided by the sureties upon
the ground that they signed it on a condition that it should not be
delivered unless it was exeouted by other persons who did not exécute
it, where it appears that the obligea had no notice of such condition,
and there was nothing to put hirn upon inquiry {(■s to the manner of
its exécution, and that he had been ijiduoed upon the faith of such
bond to act to his own préjudice. Dair v. U.S. 16 Wall. 1; Tidball
V. Halley, 48 Cal. 610; State v, Pèck, 63 Me. 284; Cutler v. Robert»,
7 Neb. 4: ; Nash v. Fugate, 24- Grat. 202; Millett v. Parker, 2 Metc.
(Ky.) 608; State ex rel. x.Pepper, 31 Ind. 76. Then there are other
cases in which it has been deeided that if a bond be written as if to be
exeouted by two or three or more sureties, and it is in f act executed
by only one, and is then delivered to the obligée, it is valid and eiïect-
ual against that one. CuMer v. ïF/n«emore, 10 Mass. 442. In Bus-
sell V. Freer, 56 N. Y. 67, M., plaintiff's intestate, held the office of col-
.lector of internai revenue. Proposing to appoint C. as his deputy, he
required eecurity that C. would pay over ail mone3's collected, etc.
For this purpose a bond was prepared, which was executed by H. and
F., and delivered to C. When they sigaed it the name of J. appeared
as obliger in the bond, and they were told by C. before signingthat J.
would sign it also, and they signed with this expectation. The name
of J. was subsequeutly stricken out of the bond without their Knowl-
edge or consent, and it was delivered to M., who had no knowlcdge of
the facts, and who thereupon appointed C. deputy. In an action on
the bond, held that H. and F., having plaoed it in the power of C. to
deliver the bond as a valid, and complète instrument, it having been
so delivered, and M,, having incurred responsibility relying thereon, it
. wa.s valid and binding.
As will be seen, noneof the cases cited meet the facts of the case
at bar. Hère the conclusion must be, f rom the manner in which the
transaction took place, that it was the understanding of ail parties,
UNITED STATES »/0'nEILL. 571
the collector included, •when Stowell and Walsh signed the fcond, that
Hugh P. Reynolds should sign it as a co-surety. As before observed,
the bond was so prepared in the collector's office, and such was the
expectation when Stowell and Walsh signed it, and left it with the
collector. The collector had notice of the understanding of the par-
ties. It was not the case of a delivery of the bond with a private
agreement between the obligor and the sureties that others should
sign it, — an agreement unknown to the obligée. It was not the case
of a bond in the hands of an obligor with other names written therein,
and then delivered by him àbsolutely to the obligée, signed by some
and not by others. It is not like the case in 56 N. Y. Hère the
bond was confessedly yet incomplète after Stowell and Walsh signed
it, and while it was in the hands of the collector; and through the act-
ive instrumentality of that offîcer or bis deputy, and by agreement
between him and the obligor, without the knowledge or consent of
Stowell and Walsh, the erasure was made in the bond, and a new
surety substituted for the one whose name was originally written
therein, and whom ail parties originally expected and understood
would sign it as a co-surety. Upon this stateof facts I feel obliged to
conclude that the bond is not an obligation binding upon Stowell and
Walsh.
In Smith v. U. S. 2 Wall. 219, Mr. Justice Cmfford states the rule
to be that any variation in the agreement to which the surety bas
subseribed, which is made without the surety's knowledge or con-
sent, and which may j.rejudice him, or which may amount to a sub-
stitution of a new agreement for the one he has subseribed, will dis-
charge the surety, upon the principle of themaxim non hcec infœdera
veni. And of this case it may be observed that in its facts and upon
the law it is highly instructive as bearing upon the kindred question
involved in the case at bar.
Several points are made impugning the validity of the assess-
ment described in the complaint, and offered in évidence. The as-
sessment list was for the month of November, 1875, and bears date
December 18th of that year. It is contended that in making the as-
sessment the commissioner excéeded bis authority in thia: that by
section 3182 of the Eevised Statutes he was limited in making an
assessment against the défendant O'Neill to a period 15 months an-
terior to the date of assessment; that therefore he could not go back
of September 18, 1874; whereas, he did in fact extend the assess-
ment back to May 1, 1874. I do not understand section 3182 as
thus limitihg the time for making the assessment hère in ques-
tion. By that section the commissioner is first given gênerai power
to make the inquiries, déterminations, and assessments of ail taxe»
and penalties imposed by title 35 of the statutes relating to in-
ternai revenues, and he is required to "certify a list of such assess-
ments when made to the proper collectors, respectively, *who shall
proceed to coUect and account for the taxes and penalties so cer-
572 FEDEBAIi EBPOBTER.
tified." Then the section provides that whenever it is asceriained
that any list which has been or shall be delivered to any coUector —
that is, any list of assessments already made and certified by the
eommissioner to a collector, and sueh as is just before spoken of — is
imperfect or incomplète in conséquence of the omission, etc., the eom-
missioner may, at any time within 15 months from the time of the
delivery of the list to the collector as aforesaid, — that is, within 15
months after the delivery of the list by the eommissioner to the col-
lector, — enter on any monthly or spécial list the name of such person
omitted, etc., and he shall certify and return such list to the collector
as required by law. It is observable that this statute does not forbid
a reasseasment for a period 15 months back of the time when such
reassessment is made, but when an assessment has been made on
discovery of an omission, etc., the eommissioner may, within 15
months after such assessment, enter on any monthly or spécial list
the name of the person previously omitted. This is what I under-
stand the statute to mean, and the court cannot say, upon the facts
before it, that the spécial taxes against O'Neill hère in question, and
appearing on the monthly list of November, 1875, or any part of them,
were assessed at a time more than 15 months subséquent to any
previous list or assessment that may hâve been imperfect or incom-
plète from any cause mentioned in the statute. But it is immaterial,
for the purposes of this case, whether I am correct in my interpréta-
tion of this provision of the statute or not; for the assessments in
question were undoubtedly made under the provisions of section 3253,
Eev. St., which déclares that "the tax upon any distilled spirits re-
moved from the place where they were distilled, and not deposited in
bonded warehouse as required by law, shall, at any time when knowl-
edge of such fact is obtained by the eommissioner of internai revenue,
be assessed by him upon the distiller of the same," etc.
The validity of the assessment is further questioned on the ground
that ati erroneous rate was adopted by the eommissioner in imposing
the tax of $20,608.28 on 29,440.40 gallons of distilled spirits from
December 1, 1874, to and including March 3, 1875. The tax im-
posed was at the rate of 70 cents per gallon. On the third day of
March, 1875, an act was approved and became the law, changing
the rate of tax on distilled spirits to 90 cents per gallon. 18 St.
at Large, 618, pt. 3, c. 127. The argument is that this act took ef-
feet at midnight of March 2d, and therefore that a tax imposed on
spirits distilled March 3d at the rate of 70 cents per gallon was illégal,
and that this illegality as to spirits made on that day vitiates the
entire assessment. The point thus made is not without force. The
question respecting the punctum temporis when a statute takes effect
is often one of difficulty ; but it would seem that the act of March
3, 1875, changing the rate of the tax from 70 cents to 90 cents per
gallon, took effect and was in force from the first moment of that day.
Arnold v. U. S. 9 Craneh, 104; In re Welman, 20 Vt. 653; In re
UNITED STATES V. O'nEILL. 573
Howes, 21 Vt. 619. So that, as to spirits produoed on the thîrd day
of March, the assessment should hâve been at the rate of 90 cents,
instead of 70 cents, per gallon. Nevertheless, I am not prepared to
hold that this vitiated the entire assessment which extended back to
December 1, 1874. The défendant O'Neill was not prejudiced by
the faot that for one day he was not assessed at as high a rate as the
law in force on that day authorized. I do not, therefore, see how he
ean complain of the alleged irregularity. If liàble at ail, he was lia-
ble to pay 90 cents per gallon on account of spirits produced March
3d, and he was required by the assessment to pay only 70 cents for
that day 's production. At most, there was an omission on the part
of the commissioner to comply with the full requirement of the law,
BO far as his act embraced the single day in question, but his action
in that respect was not vfholly ultra vires. I cannot, therefore, hold
that the assessment was invalidated by the act of the commissioner
conaplained of.
The validity of the assessment is further attaeked on the ground
that a tax of $10,740.80 was imposed on spirits distilled between
May 1 and December 31, 1874, aud that another tax of $20,608.28
was imposed on spirits produced between December 1, 1874, and
March 3, 1876, thus, as it is claimed, making a double tax on the
same spirits for the month of December, 1874. But this objection
is untenable, because the court cannot say that the two assessments
for the month of December covered the same spirits. Presumably
they did not, and if it is a case of double assessment, it is for the de-
fendant affirmatively to show it. The court can by no means pré-
sume, in the absence of proof, that the two assessments for the month
of December covered the same spirits. It was said on the argument
that it was impossible to separate from the property assessed the sec-
ond time that which had been already assessed once, and which was
therefore exempt from taxation. But this assumes, in the absence of
proof, that the same spirits were assessed twice, and this assumption
is not, in the opinion of the court maintainable.
Concerning that part of the assessment which embraces spirits al-
leged to hâve been produced between March 4, 1875, and June 30th
of that year, and amounting to $27,786.02, the court does not see
how it can be included hère as part of the basis of liability upon the
bond in suit. The bond expired May 1, 1875. Of course, it only
covered transactions oceurring between May 1, 1874, and May 1,
1875. The assessment just spoken of, as will be seen, covers a pe-
riod extending beyond the life of the bond, namely, May and June,
1875. That assessment, covering the period from March 4 to June
SO, 1875, is not under the proofs before the court, separable. That
is, it is impossible, upon any facts shown hère, to correctiy and justly
détermine what, if any, proportion of the spirits produced during that
period was so produced and removed during the life of the bond.
Perhaps some proportion could be mathematically astfertained on the
bt4 FEDERAL BEÏ>OETER.
basis of the "wholo amoant alleged to hâve been produced and the
number of months and days embraced in the period covered by the
assessment. But that would be a calculation in its nature arbitrary,
and might be whoUy incorrect, and therefore very unjust. Liability
on the bond in suit oannot, therefore, be based upon tiiat assessment.
In the assessment list in évidence, whioh embraces the items of
spécial tax before enumerated, the non-payment of which is alleged to
constitute a breach of the bond in suit, is iucluded another spécial tax
on 1,752J gallons of apirits, entered as produced in March and April,
1874, which tax amounts to $1,226.75, This tax or assessment is
not set out in the complaint as any part of the plaintifE's demand
against O'Neiil, and so it is insisted that there is a substantial and
fatal variance between the allégations of the pleadings and the
proofs. It is argued that this is an action of debt on the assess-
ment; that the defendant's answer is in effect a plea of nul tiel
record; that the assessment, embracing ail the items of spécial tax
named therein, must be treated as an entirety, and as a single cause
of action ; that the items of this cause of action cannot be divided
up, and separate suits maintained on eaeh; and that since the as-
sessment as an entirety, and as proven, does not conform in amount
to the aggregate of the items of tax contained in the assessment de-
scribed in the complaint, there is a variance fatal to the maintenance
of the action. The answer to this is, that the suit is not, strictly
speaking, upon the assessment. It is upon the bond. It is alleged
that the conditions of the bond hâve been broken, in this, that the
défendant O'Neiil bas not paid certain taxes assessed against him,
and thèse taxes are shown in the assessment offered in évidence. In
fact, the assessment only constitutes the évidence in part, of the al-
leged breach ; and it is the breach of the condition of the bond that
constitutes the cause of action. The failure to pay either of the
items of tax contained in the assessment, if the tax was legally and
justly iimposed, would be a breach of the bond, and thàt would be
the basis of liability. Suppose the défendant O'Neiil had paid one
or more of the items of tax embraced in the assessment, but had
neglected to pay the other items, would not an action lie on the bond on
account of such default? Clearly it would, and so it cannot be neo-
essary in order to maintain the action to allège and to show that
there bas been a default upon the entire assessment, but default may
arise upon either of the items of tax, and thereupon an action for
such default, based upon the conditions of the bond, may be main-
tained.
It is in proof that on a spécial assessment list of the date of No-
vember 30, 1875, there had been previously assessed against the de-
fendant O'Neiil a tax on 5,117 gallons of spirits, claimed to bave
been distilled between July 1, 1874, and March 1, 1875; that pre-
Bumptively this assessment covered ail the spirits manufactured and
removed by the défendant during that period, and that therefofe the
STEVENSON V. , "WOODHeLL. 575
assessment in évidence, which is made the foundàtion of liability ou
the bond in snit, was unauthorized. In maintaining this contention,
everything dépends upon the fact whether or not the différent assess-
ments cover the saoie spirits. It is not shown that they do. It can-
not be presùmed that they do. The exercise of authority in making
the earlier assessment did not exhaust the power of the commissioner
to make another assessment, embracing the whole or a part of the
same period, if the two assessments did not bover the same spirits;
nor does the first assessment raise such a presumption that it eovered
ail the spirits manufactured and removed during the period named
therein, as to invalidate the second and later assessment. ; It is, after
ail, a question of fact whether the two assessments eover the ' same
spirits, and, as just remarked, it is not proven that they do.
On further revie\v of the merits of the case, the court held that
the proofs on the part of the défendant O'Neill, attacking the assess-
ment, were not sufficient to pvercome the force and effect of the as-
sessment and the proofs adduccd in its support on the part of the
goyernment, and ordered judgmënt against the défendant O'Neill,
ai^d the surety, .Tohn B. Reynolds, for the sum of $25,000, the
amount of the penalty of the bond.
Stevenson v. Woodhhll Bros.
[Gireuit Court, W. D. Texas. 1884.J
PiioMissoBY NpTE— Tbansfer to One Partner— Paymbnt to Anothbr.
Wien a note payable to a partnership flrm is indorsed by the firm in blânk
and transferred to oneof the partners before maturity, the maker, if he has no-
tice of the transfer, is aot discharged of his liability to tlie transférée by pay-
aient of the amount of the note to another member of the flrm.
TcBNEE, .T. This suit is upon a promissory note made and exe-
cuted by the défendants June 24, 1878, payable to Priest & Sever-
ance, or order, for the sum of $1,000, and due the fifteenth of Novem-
ber, 1878. This note was indorsed upon the back in blank by Priest
& Severance. The légal effect of this blank indorsement is and was
to make the note payable to the légal holder of the same ; it trans-
ferred the interest of the firm of Priest & Severance to the légal
holder. Thé note is not shown to hâve had any vice in it at the date,
of its exécution; on the contrary, the évidence shows the same to
hâve been given ior a valuable Considération. Therefore, no défense
could beset up against this note, «ither as against the original payées
or any subséquent holder, exoept the one mad« hère, viz., payment
in whole or in part. It is not preténded that the indorsement was
not made by one of the fii-m of Priest & Severance, nor is there any
570 FEDERAL REPORTER.
évidence showîng when the blank indorsement waa made, as matter of
fact. In the absence of any proof, the law présumes the indorse-
ment to hâve been made before maturity. If partners see fit to trans'
fer their partner ship property to an individual member of the firm,
they hâve an undoubted right so to do, and certainly, as between them-
selves, they are bound by that act. The légal effect of this indorse-
ment was to change the ownership of the same from Priest & Sev-
erance to the légal holder of the note, wherever that might be, and
if it be true that Priest was the holder, and that the same was placed
in his possession, the légal presumption would be that the firm had
transferred their interest in the note to the individual member, who
thus became the bearer or holder of the note. The law will not pré-
sume that an act that may lawfully be done was unlawful in the
absence of proof. There is no évidence hère that repels the légal
presumption arising from the facts established that this note was
transfei'red by the firm to Mr. Priest, wheu it is shown that Priest
was the holder of the instrument. Severance is not produced as a
witness, nor is there any évidence which shows that this légal pre-
sumption is not in accordance with the real facts of the case ; in fact,
the évidence shows that ail the money that was paid, was paid to
Priest, and no objection was made at the time, so far as the évidence
shows. As I hâve stated, the partners may, if in the course of their
business, transfer partnership property to an individual member of the
firm, and none but the creditors of the firm hâve a right to complain
of such act. The effect of such transfer is to divest ail the other
members of the firm of any property in the thing so conveyed, so f ar
as the partners are concerned, and the title thereto actually passes
to the individual member.
The question next arises, how does such a transfer of a promissory
note, as in this case, affect the debtor? If the fact of such transfer
were unknown to the debtor, and he paid to one of the members of
the firm, who had transferred his interest to his copartner, such pay-
ment would unquestionably be a good payment. But suppose the
debtor knew at the time he paid to the member who had sold that
he had parted with ail his interest in the note, and consequently
knew that he had no more right to the money than a stranger, can it
be insisted for a moment that such a transaction would deprive the
true owner of his right to recover against the maker, such a rule
would open the door to the grossest fraud. The legel presumption
then must be (and there is no proof to rebut it) that the firm had
sold this note to Priest. As Priest is shown to hâve had possession,
use, and control of the same, it follows, admitting ail that is claimed
by the défendant to be true, from ail that appears, if the payment
was made to Severance, and at the time of the payment WoodhuU
Bros, had notice that the note was transferred either to Priest or any
body else, the WoodhuUs paid with their eyes open, because they had
notice that the note had been transferred. The WoodhuUs, as the
STEVENSON V. WOODHOLL. 577
évidence shows, were cautious enough to take a boild of indemniiy,
protecting them against any recovery upon the note. Thé note waa
hère in the bank, and Severance could not get control of the same.
The bond taken by the défendants is not produced in évidence, and
the presumption arises that if produced it would militate against
them; but the fact that they took the bond shows that they were
put upon their guard. Further than this, the défendant pleads that
the payment was made by the delivery of sheep, and produces a re-
ceipt from 0. Severance, dated October 30, 1878, which récites that
défendants had paid that day to 0. Severence the note in suit, and
further shows that défendants received from Severance a bond of in-
demnity, to proteot them in case the payment should tum ont in-
valid at this time. October 30th there was a suit pending in the
state court, and the défendants were gamishees; the writ of garnish-
ment was served upon them the twenty-fourth of October, 1878, six
days before they answered the same. On the first day of November,
1878, the next day after the date of the receipt, thèse défendants, or
one of them, made answer that they had not paid this note, or any
part thereof, and, further, that Priest had notified him by letter of
the transfer of the note. It is a little strange, if they had paid this
note after the garnishment was served, and but the day before the
answer in garnishment was made, that he should hâve forgotten so
important a transaction; such a presumption cannot be indulged in.
He is not hère to make any explanatioQ, and I conlucde that he pre-
ferred to let the case rest as it is, rather than state hère that he had
in fact made the payment to Severance, allowing that Severance had
a right to collect the note. If he thought Severance had a right to
collect the note, he knew also that he had the right to control the
note, and défendants had the right to hâve the same surrendered up
to them. The note was not lost; on the contrary, it was in the bank
hère, and défendants knew it, and Severance could not control it.
Défendants therefore acted at their péril, and it is a matter of no
conséquence whether J. E. Severance or 0. Severance was the real
partner with Priest. They had, however, notice in the most impres-
sive form that J. E. Severance was the real partner, as they had been
made parties to a suit wherein J. E. Severance sued Priest, claiming
that he, J. E. Severance, was the partner of Priest, to whom the note
was given. And the very note in question was a part of the matter
in litigation, and if they then had any doubt about who it was that
comprised the firm of Priest & Severance, to whom they had exe-
cuted this very note, it does not appear hère, and yet it seems that
upon floating rumor and gênerai understanding that 0. Severance
was the real partner, they took the hazard, as they say, of paying
this very note to 0. Severance.
The judgment is for the plaintiff, for the note and intere^t, cost of
protest, and cost of suit, and défendants must look to their bond of
indemnity for redress, if any they hâve.
v.l9,no.8— 37
'578 FKBESAIi .BEPOSTEB.
Balfoor and others ». Sullivan, Colleetor, etc.
J , {Circuit Court, D.California. March IQ, 1884.)
ÛtisTOHs DuTiBs— Grain Bags— Re-entry Freb op Dutt— Powebb of Secbe-
' - TARY. •
. The ciïstoms and revenue laws provide that " graia bag9, the manufacture
of the Upited States, when exported fllled with American products, may be re-
turhed to the United States frèe Of duty, under such ruies and regulàtiona as
shall bepréscribed bythesecretary of thetreasdry." Grain bags manufactured
■ . . in this cpùntry ;from imported materials were exported f h11 of Oalif ornia wheat.
Tlie exporter demanded and received according to law, out pf the public treas-
ury, tiiîe drawbaols due him on accbunt of the dùty fortoerly coUected upon the
~ lûaterials' of which the bags weremade. Upon the retorn of the grain bags,
held, that they were entitled to paas free of duty. "îhe po;wer of the Becr8ta,ry
to preacribe rules and régulations does not authorize him tp impose a duty, ript
• '^rovided for by congrisss, in repayinent of the drawback. '
At Law. ■
Page é EeUs and Milton Andros, for plaîntiHs.
S. G. Hilhorn, U. S. Atty., and Ward McAllister, Asst. U. S. Atty.,
ïordefendant.
Sawtbb, J, This is a suit to rôcôver of défendant the sum of $180,
coUected as duties on 11,850 grain bags, which collection of duties ia
claimed to be unlawful. The grain bags had been manufactured by
Detrick & Co., manufacturera of bags, at San Francisco, out of ma-
terial of foreign production, upon which the importera had paid the
proper duties. The baga we^re atamped, "Detrick — Drawback Eight
Eeserved," and aold to grain producers of the atate of Calif ornia;
Theae baga having been pùrchased by the grain growera, and filled
with wheat produced in California, were, with their contenta, after-
wards aold to plaintiffs, in the ordinary course of buaineaa in the grain
market, who ahipped the wheat in the baga, as ao pùrchased of thé
producers, to Liverpool, England, where the wheàt waa aold, and
emptied from the bags, and the baga were afterwarda brought back
to San Francisco, whence they had been shipped by plaintiffs, the
ownership of the bags remaining in the plaintiffs from the time
of their purohase, filled with California wheat, till -their return to San
Francisco empty. Upon their leaving San Francisco, filled with
wheat, Detrick & Co. claimed the drawback of duties paid on the ma-
terial used in the manufacture of the bags, and the drawback waa paid
to them in assumed purauanee of the provisions of section 3019 of
the Eevised Statutes of the United States, and the régulations of the
secretary of the treasury for carrying those provisions into eiïect. On
the return of the bagS' the plaintiffs claimed, upon various grounds,
that they weye entitled to bring the bags to San Francisco and reçoive
them free of duty. The collecter took the ground that the drawback
having been paid^on exportation, in pursuancé of section 3019, and
thea-egulationa of the seerôtary of the treasury, duties must be paid;
and plaintiffs were compelled to pay the duties claimed in order
BALPOtJB Vi StriiLIVAK. 579
to obtain the bags, The action of the coUector, in collecting the
duties, was affirmed by the secretaty of the treaaury, and this action
is brought to recoverthe duties so collected.
Section 9 of the act of congress oî February 8, 1875, "To amend
existing customs and internai. revenue laws, and for other purposes,"
(Supp. Eev. St. 130,) provides that "grain bdgs, the manùf aoture of the
United States, when exported, Jillèd with American producta, may be
returned to the United States /ree of duty, under such; raies and régu-
lations as shall be prescribed by the secretary of the treaaury."
There is no exception to thèse provisions. The bags, whatever may
be said of the material, were "the manufacture .of the United States,"
and they were exi^orteà Jîlled with American products, and beiûg Buch
■were entitled under this act to "be returned to the United States /ree
of duty." It does not appear to me that this explicit language is
open to construction. The only exception is that they shall be re-
turned "under such rules and régulations as shall be prescribed by
the secretary of the treasury." The authority of the secretary only
extends to the modus operandi — the course tô be pursued in i,dèntify-
ing and returning the "grain bags;" and that power does not ex-
tend to an imposition of a duty in the face of the provision of the
statute that they "may be returned * * * free of duty." The
statute in no sensé authorizes the imposition of a duty, as a part of
the rules and régulations to be prescribed by him. The omission to
provide for a repayment of the drawback in such cases may be an
oversight on the part of congress. But whether so or not, to require
by régulation the collection of the regular duties upon bags mana-
factured in the United States, because the bags, when exported, paid
a "drawback" for duties on the material of which they were manu-
faetured, is to ingraft an exception on the provisions of the act, au-
thorizing the bags which were "exported filled with American pro-
ducts," "to be returned * * * free of duty," which congress
either did not see fit or omitted to adopt. The secretary of the
treasury was not authorized to make any such exception. Morrill v.
Jones, 106 U. S. 466; S. G. 1 Sup. Ct. Rep. 423; Merritt v.WelsK
104 U. S. 702; Balfour v. Sullivan, 8 Sawy. 648; S. G. 17 Fed. Eep,
231.
Under the provision of the act cited the bags in question were en-
titled to re-enter the United States "free of duty," and the duties on
that ground were illegally demanded and collected. None of the
other provisions of the statute cited affect this ground relied on for
a recovery, and they therefore need not be discussed.
There must be a judgment for plaintiffs for the amount of dutiea
unlawf ully collected, and it is so ordered.
680 fedebai) bepobteb.
Kennedy ». Gitï of Saobamento.
[Gircuit Court, D, Oalifornia. February 18, 1884.)
1. MuNiciPAii Bonds — Sachamento Ciir— No Action Maintainabijb.
The législature of Oalifornia ia 1858 enacted th»t thereafter no action should
be brought against the city of Sacramento by its creditors ; that the oity should
issue its bonds for the purpose of funding its debt, and should levy an anaual
tax of 1 per cent., of which a speoifled portion should be set aside ror the pay-
ment of the bonds. Those who held claims against the city surrendered their
évidences of indebtedness, and took the bonds instead. Éeld, that no actioii
would lie upon the bonds, but that the remi dy of the bondholders was by man.
damus against the proper offlcers to compel them to carry out the terms of the
Btatute. The creditors, by accepting the bonds, contracted that the city should
not be liable to be sued.
2. Statutb Permitting Pbkpormanok dp a DtTTT CoNSTRUBD AS Mandatobt.
In 1863 the législature revised the aot of 1858, re-enacted its provisions with
regard to the payment of the bonds, except that the terras of the re-enacted
clause, sanctioning a tax of 1 per cent., was permissive instead of mandatory.
But, held, that the provision was still compulsory, since words in a statute per-
mitting ofHcers to discharge a public duty are to be construed as mandatory.
If the act were susceptible of any other construction it would impair the obli-
gation of contracts.
3. Waiver of Constitutional Right.
The constitution of the state provided that ail corporations should be subjeot
to be sued like natural persons. Held, that (even supposing the clause to ap-
ply to municipal corporations) the bondholders had by their contract divested
themselves of thtir constitutional right.
At Law.
J. W. Winans, for plaintiflf,
J. H. McKune, A. P. Catlin, and W. A. Andersen, for défendant.
Sawyeb, j., lorally.) This is an action brought to recover $9,000
due on coupons of the Sacramento city bonds. It is an ordinary ac-
tion upon the instruments, not a mandamus against the officers of the
city, but an action against the city of Sacramento to recover on thèse
coupons as upon a contract. Under the charter of Sacramento, of
1851, a large amount of indebtedness had accrued, for which bonds
were issued. In 1858 the city and county of Sacramento were Con-
solidated into a municipal corporation, like the city and county of
San Francisco ; the boundaries of the city and county being co-exten-
sive with the former boundaries of the county. In that act consoli-
dating the city and county, provision was made for funding the then
existing debt of the city and of the county of Sacramento, and pro-
vision was made in the act for the purpose of liquidating, funding,
and paying the claims against the city and county of Sacramento
hereinafter speciâed. "The treasurer shall cause to be prepared
Buitable bonds for the county of Sacramento, not exceeding the sum
of six hundred thousand dollars, and for the oity of Sacramento not
exceeding one million six hundred thousand dollars, bearing interest
at the rate of six per cent, per annum, from the first day of January,
1859." St. 1858, p. 280, § 37. Then it provides 'for raising a fund
for the payment of the interest, and ultimate extinguishment, of that
KBNNEDT V. OITT OF SAORAMENTO. 331
prior indebtedness of the city of Saoramento so fanded. In the last
clause of the section it provides that "none of the claims herein speci-
fied shall be liquidated or paid except in the manner herein provided."
The act also provides that "the city and county shall not be sued
in any action whatever, nor shall any of its lands, buildings, improve-
ments, property, franchises, taxes, revenues, actions, choses in ac-
tion, and effects, be subject to any attachaient, levy, or sale, or any
process whatever, either mesne or final," (Id. p. 268, § 1,) thereby cut-
ting off ail right of suit, and providing that none of the fands, or rev-
enues from taxation, or otherwise, shaJl be reached, on account of
this indebtedness, otherwise than as provided in the act.
Section 34 provides that the board of supervisors shall not hâve
power to levy any greater taxes than as foUows, viz. : "On the real
and Personal estate, except such as is exempt by law throughout the
city and county, a tax of one bundred cents on the one hundred dol-
lars," shall be levied, and the amount is limited to that sum annually,
except for state and spécial purpoaes. But it provides further, that
"they shall levy for municipal purposes, on ail real and personal prop-
erty within the city, except such as is exempt by law, a tax of one
hundred cents on one hundred dollars."
Section 35 provides that "the revenue derived from and within the
city limits for municipal purposes, — namely, taxes, licenses, harbor
dues, water-rents, and fines coUected in the mayor's court, or other-
wise, — when paid into the treasury, shall be set apart and appropri-
ated as follows : Fifty-five per cent, to an interest and sinking ftind,
which shall be applieâ to the payment of the annual interest and the final
red-emption of bonds issued for city indebtedness, in accordance with the
provisions ofthis act," referring to the bonds which were to be issued
in liquidation of the prior indebtedness of the city in pursuance of the
terms of the act.
Section 38 provides : " The annual interest and principal of ail bonds
issued for claims against the city shall be paid from the interest and sink'
ing fund provided in section 85, and in the manner otherwise provided in
this act."
There is, then, a provision for funding the .prior indebtedness of
the city to the amount of f 1,600,000, and provision that 55 per cent,
of the taxes and other revenues of the city shall be set apart to pay
the interest, and to secure the ultimate extinguishment, of the bonds;
and it is provided that "nom ofthe claims herein specified shall be liqui-
dated or paid, except in the manner herein provided;" and it is further
provided that there shall be no suit against the city on thèse or any
other claims, and that no exécution or other process shall issue by
which any of the property or revenues or moneys or other resources
of the city shall be reached.
The rate of interest was 6 per cent, per annum, to be paid upon
the indebtedness. The parties who surrendered their prior évidences
of indebtedness and took thèse bonds, took them under the provis-
582 FEDEBAIi ÏIBPOBTEB.
iorrs of this act, whîch waa.a contract made betweeri the oity and
tliem ; that the bonds should be coUected only in that particular man-
nçr, çind paid in that particular mode, and no other; that there
should be no other remedy for them ; that the oity should not be sued.
The advantages which they obtained are subject to the provisions
made for their ,payment — to the limitations put upon their remedy.
The advantage to tùe oity was that it should not be harassed by any
other kind of suit ; an extension of the time for payment; and the ré-
duction of the rate of interest. The advantage to the holders was
the spécifie, certain, and permanent provision made for prompt pay-
ment in future. This was a fair contract, entered into between the
city on the one hand and ita creditors on the other, in virtue of the
provisions of this act. There were advantages gained and rights
surrendered by eaeh, and a valuable considération moving from and
to both contraeting parties. In 1863 that charter was repealed and
another one passed. The city and county.were restored by the char-
ter of 1863i In that charter it is provided that the city of Sacra-
mento raay be sued upon bonds or covenants, etc., "provided, however,
that such bond, eovenant, agreement, contract, matter, or thing, that
was the cause of action, bas been made or entered into after the pass-
age of this act," (St. 1863, p. 415, § 1;) se that, by implication,
in providing the kinds of bonds upon which suit might be brought, it
was limited to the covenants or bonds or liabilities accruing after the
passage of the act. Thus, as to thèse bonds in question, there is no
change in the law with référence to the liability of the city to be sued.
And in that act it is also "provided further that none of the lands,
tenements, hereditaments, taxes, revenues, franchises, action, choses
in action, property, or effects of any kind or nature whatsoever, of said
city or of either or any of its trusts or uses, shall be attached, levied
upon, or sold, on any process whatever, either original, mesne, or
final," thereby continuing, as to ail demande against the city, that
provision of the charter of 1858 having référence to the inability to
exécute a judgment when obtained, by virtue of any process, mesne
or final, against the city itself . With référence to the city of Sacra-
mento, therefore, aad with référence to thèse bonds, in both of thèse
particulars, the law as laid down in the act of 1858 is continued.
The third clause of section 2 of the the act of 1863 also provides
that the board of trustées shall hâve power "to levy and collect taxes
and assessments on ail property within the city, both real and per-
sonal, made taxable by law for state or county purposes, which taxes
shall not exceed 1 per cent, per annum upon the assessed value of
ail property." St. 1863, p. 416. That is the same amount that they
could levy under the old charter. Section 26 continues the provision
for the payment of the bonds in question with one exception in lan-
guage. In this act the words "net water renta" are uséd instead of
"water rents." This is the only change. The provision is as foUows,
via.:
KBNNEDT ». CITT ôV ' BACBÀ.MENTO. 583
"The revenue derived from and witliin the city limits for municipal pur-
poses, viz., taxes, licenses, harbor dues, net water rents, and fines cbllécted
in tiie police courts or otlierwise, exceptas liereinafter provided, when paid
into t)ie treaéury, shall \)e appropriated and divided as follows: Fifty^fiveper
cent, to an interest and sinking fand, lOhich shall be appîied to tKe paymént
of the anniMl interest upon tM bonds legally issuedfof dlty indebtedness, is-
fiuedundertheacto/185S; the eoDcess of said/ùnd, afteftlie^ayment ofsaîd
interest, shall be applied to the rédemption ofsaid bonds, in sUcih mann&r as
the boàrd of trtistees may deteréitne." Id. p. 426, § 26.
Thus in the act of 1868 the same provision for the payment of
thèse bonds is continued that was made in the act of 1858, and the
the same limitations upon the remedy are continued by providing that
no suit shall be maintàiuéd against the city, and that nonèof its
property, or revenues, or f uhds, shall be reaehed nnder any process,
rhesne or final.
With référence to the àmpunt levied, one word is changed onIy,the
positive provision in the old act that 100 cents on the $100 shall be
raised each year for the pur'poses of revenue is made permissive in
form instead of mandatoi*y iii.'the neW act. This is thé ônly change
in the act in that particular, the same provision otherwise continuing
as provided in the other act. , But words permissive in form, when a
public duty is involved, are çohstruëd as mandatory. Under the pro-
visions of thèse aets, in my judgmént, the cityisnot liable to be sued
on thèse bonds or coupons. ît is bne of thetermsof the contractbe-
tween the city and the boridholders, and a part of the considération
upon wliich the bonds wei-e issued, that the city shall not be sued on
them. The remedy alone is to compel the treasurer, hj mandamus,
to pày any money in the siriking fund upon the coupons. If the board
of trustées i-efuse to provide that fund, the remedy îb to compel them to
provide a fund by a tnandumus, in accordance with the duty imposed
upon them by law. Thèse are proceedings personally àgainst the
officers to compel them to perform a duty enjoined by law, in respect
to wKich they hâve no discrétion. Both of thèse remédies are remé-
diés against oiïïcers to compel the performance of duties required by
thèse express provisions of the act for the payment of thèse bonds,
and not a suit against the city. Those remédies, the suprême court
of California bas held, are available.
In the case of Meyer v. Brofcn, deeided on September 28, 1883, the
suprême court held that the board of trustées is subjéct to be com-
pelled to perform its duty to provide this fund by mandamus. On page
157 of the Pacific Coast Law Journal, the court says:
"Having thus made provision for the payment annuàlly of the interest on
the bonds, and ultimately for their rédemption, the législature offered them
in payment of the légal daims against the oM city government, Tiie offer
was accepted, and the holders of the latter surrendered their daims, in con-
sidération of which the Consolidated government issued to them il? bonds, pur-
.«uant to the provisions of the act. The bonds carried with them the pledge
of an annual tax for municipal purposes on ail real and personal property
within the city limits, excépt such as is exempt bylaw, of one hundred cents
584 FEDERAL EEPORTEB.
on the one hundred dollars, fifty-flve per cent, cl which to be set apart and
appropriated to an interest and sinking fund to be applied to the payment of
the annual interest upon the bonds and to their final rédemption. The tax
was the chief security oiîered the créditera as an inducement to accept the
bonds in payment of their claims. When the bonds, for whoae payment with
interest provision was thus made, were issued and accepted by the creditors of
the old City government, a contract was made as solemn and binding, and as
much beyond subséquent législation, as it would hâve been if made between
private persons. Thèse views wili be f ound sustained and amplifled in an able
opinion recently rendered by the suprême court of the United States in a case
eiititled Louisiana v. Pihiury. 105 U. S. 278."
I hâve examined that case, and it fully sustains tliîs proposition.
It is a similar case. The contract was enforced by mandamus upon
the officers. "It is well occasionally, " added the court, "to recall the
fact that there is no more reason to permit a municipal government
to répudiais its solemn obligations entered into for value than there
is to permit an individual to do so. Good faith and fair dealing
should be exacted of the one equally with the other." In that case,
then, it was held that the board of trustées was bound to go on and
levy this tax in pursuance of the old law, if that was more advan-
tageous to the parties than the new one. It is incompétent for them
to repeal the old statute, so far as it atïected the right of thèse bond-
holders; and in a récent case, decided February 13, 1884, (the case
of Meyer v. Porter, 2 Pao. Eep. 884,) the suprême court of California
again takes a similar view. The question was whether the treasurer
may be eompelled to pay the interest eut of the fund provided; and
the suprême court holds in this case that the treasurer may be eom-
pelled to pay out of the moneys which are in that sinking fund the in-
terest due upon coupons that ^are presented, irrespective of the fact
that only.one party présents his coupons. Under this décision, so
long as there is any money in the fund, the holder of coupons due is
entitled to his money on their présentation, and it is not necessary
to file a bill in equity to enforce a trust, making ail the holders of
the bonds and coupons parties, for the purpose of distributing the
fund Tpro rata, but that any man having overdue coupons may by
mandmms compel the treasurer to pay out the funds upon such cou-
pons, so long as there are funds. TJnder those décisions of the su-
prême court of the state, supported by the authority of the suprême
court of the Qnited States, the holders of bonds and coupons bave
the exact remedy which the provision of the charter of 1858 provides
for the payment of those bonds, and which the act of 1863 continues;
and if the latter act does not in ail respects continue the remedy in
the particulars wherein the former act was repealed, the repeal is
void, and the old act in force.
The plaintifE insists that the provisions of the charter of Sacra-
mento of 1858, that the city shall not be sued, and continued with
respect to the bonds and coupons in question in the act of 1863, ia
void under the provision of the state constitution that "ail corpora-
KENNEDY V. CITY OF SAOBAMENTO. 685
tîons shall hâve the right to sue, and shall be subject to be sued, in ail
courts in cases like natural persons." Old Const. art. 4, § 33. It
may well be doubted whether this provision applies to municipal cor-
porations and counties made corporations. But if it be otherwise,
the contract in this case takes the bonds in question out of the pro-
vision. It was one of the conditions upon which the bonds were
issued by the city and aecepted by the bondholders that there should
be no suit on the bonds, and no other remedy than that provided by
the charter. This was a part of the benefit to inure to the city by
the arrangement, and an important and valuable part of the consid-
ération for its action in issuing the bonds and making the extraordi-
nary and permanent provision and appropriation for payment béné-
ficiai to the bondholders. This part of the contract is as important
and as binding as any other. The provisions are that the city shall
not be sued, and that none of its property, revenue, or funds shall be
taken upon any mesne or final process, and that none of the elaims
herein specified shall be liquidated or paid exeept in the manner
herein provided. Also, that "the annaal interest and principal of
ail bonds issued for elaims against the paid city shall be paid from
the interest and sinking fund provided by section 35, and in the
manner otherwise provided in this act." The action brought against
the city, therefore, in the face of thèse provisions of the contract, can-
not, in my j'udgment, be maintained, for the reasons and upon the
grounds stated. The only remedy is to proceed by manâamus against
the oiSeers personally, to compel them to perform their respective
oaties, as prescribed by the act of 1858, and uuder the act of 1863,
also, 80 far as that act is in accord with the act of 1858. The su-
prême court, as we hâve seen, bas held that it was incompétent for
the législature to repeal the provisions of the charter of 1858, so far
as they affect the means provided for liquidation of thèse bonds. Con-
sequently, that the board of trustées could be oompelled by mandamus
to provide f he funds in accordance with the requirements of the char-
ter of 1858 ; and, when so provided, that the treasurer, having the ons-
tody of the funds, could be compelled in like manner to pay the cou-
pons as presented out of the funds provided.
There must be judgment for défendant on the grounds indicated,
viz., that a suit against the city is not the proper remedy, and can-
not be maintained in the face of the contract entered into under the
statute ; and it is so ordered.
586 FBDEEAL EEPOBTEB.
Ex parte Woeley.
{Dietrid Court, W.D.Norih Garolina. 1884.)
POWERS &.1ST) DOTIES OF A MaEBHAI, AS TO PbECEPTS IK HIS HaKCS AT TUE Ex-
PIBATION OF HIS TeBM OF OfFICOE.
In North Carolinà a marshal, whose term of office bas expired, may be re-
quired so to amend his reiurn upou an exécution as to furnish his successor
"with a description of tlie land luvied upon, sufflciently accurate to enable him
to exécute a yalid deed to the purchaser at the exécution sale.
A Pétition for OrjJers to perfect title to lands sold on exécution sale.
P. A. Cummings, for petitioner,
DioK, J. The petitioner, Henry Worley, allèges that he is a pur.
chaser at a eale made by a deputy of E. M. Douglas, iate marshal of
this district, under a -writ of exécution founded upon a regular judg-
meint of this court, and levied upon the lands of the judgment debtor,
Solomon Davis; that the purchase, money has been paid by him to
said deputy, and has been returned into court in part satisfaction of
said judgment; that the term of office of the Iate marshal bas expired,
and a deed has not been executed, and the levy indorsed upon the
exécution is defective in not describing the land sold with sufficient
certainty. The relief prayed for is an order to the Iate marshal, di-
recting him to amend his levy so as to set forth a description of the
land sold with more certainty as to location and boundaries. The
petitioner also prays for an order to the présent marshal, Thomas
B. Keogh, directing him to perfect title and exécute a deed to said
lands, in conformity with section 994 of the Eeyised Statutes.
Upon hearing the pétition, the suggesfcious of counsel, and the évi-
dence presented, it is considered that the petitioner is entitled to the
relief he seeks. A court has the power to direct writs of exécution to
be amended at any time, so as to set forth neeessary facts for the
purpose of supporting proceedings under them. This power is indis-
pensable to the administration of justice and the due régulation of
the officers of the court. Under section 788 of the Eevised Statutes,
marshals and their deputies posseas in each state the same powers in
executing the laws of the Uuited States as the sheriiïs and their depu-
ties in suoh state hâve in executing state laws. Section 790-, among
other things, provides that marshals and their deputies, when the
term of office expires, shall bave power to exécute ail sucb precepts
as may, at the time, be in their hands. We will, therefore, consider
the laws of this state in determining some of the questions presented
in this proceeding.
It is well settled in this state that a sheriff may be directed or per-
mitted by the proper court to make a return on a writ of exécution,
or to amend the same, at any time, so as to make it conform to the
truth, even in cases where important conséquences as to the rights of
EX PARTE WdBLBT. 587
parties are produeed by such amendmentis. Cô'dy y. Quînn, 6 Ired.
Law, 191, and cases eited. This powercannot be exercised by a court
so as to affect the rights of third persons, Who are not parties to the
record, and innocent pnrchasers for value without notice. Williams
V. Sharpe,70 N. C. 582; Phillips r. Holland, 78 N. C. 31. It does
not appear that the right of third persone are in àny teay involved
in this matter; and as this is an ex parte proceeding, such rights
— if any exist — cannot be affected, as such persons wili not be pre-
vented from asserting sueh -rights by an order made in a case in
whieh they are not parties and hâve no notice. If the marshal who
made the sale was stiil in office, the amendaient asked for vrould
not be neceaaary, as he could make a deed with full description as to
boundaries, even if there had been no levy of the exécution. In this
state there is no necessity for a sheriff to make a levy on real property.
A judgment créâtes a lien on ail such property belonging to the jndg-
ment debtor in every county in which the judgment may be docketed.
The writ of exécution opérâtes as an authority and order of sale.
The only effect of a préviens levy is the spécifie appropriation of
the property on whieh it is made; and this may be a matter of im-
portance where there are other lands and other judgment oreditors of
a common debtor. Surratt v. Crawford, 87 N. C. 376. It is well
settled by many décisions that the rights as to real property are
largely regulated by local state laws, and it is the duty of fédéral
courte— having aequired jufiBdiction — to administer those laws un-
der the same modes of procédure as if they were local courts in the
state in which they are held. Spear, Ped. Jud. 641, 662. In ac-
cordance with the laws of this state a docketed judgment in a féd-
éral court of this district is a lien upon ail real property within its
jurisdictiona:! limite, and may be enforced bysiich modes of procéd-
ure as are provided by the laws of this state. As section 994 of Ee-
vised Statutes provides that a dèéd to a purchaser at exécution sale,
in cases like the one before us, shall be exeouted by the présent mar-
shal, it is necessary that he should dérive information from bis pre-
decessor as to the location and boundaries of the lands sold; or from
évidence passed upon by the court. If he obtained information upon
this subject from other persons, their statéments, set forth in a deed
executed by him, would in no way be operative against either parties
or Etrangers. The return upon process made by a duly qualified of-
ficer of the law is prima facie évidence of what it states, and cannot
be coUaterally impeached, although it may be çorrected so as to
speak the truth with more completeness and certainty, uhder the di-
rection of the court to which the return is miade. Edwards v. Tipt&n,
77 N. 0. 222. From the return of the late marshal it appears that
the lands of the judgment debtor were duly sold to the petitioner, and
the purchase money bas been received and paid into office, and the
levy indorsed on the exécution does not specify the location and bound-
aries.
588 FEDERAL BEPOKTEB-
The only question wbich remains to be considered is wliether the
late marebal — since the expiration of bis term of office — can be le-
gally directed or permitted by this court to make an amendment to
bis return on the writ of exécution under -wbich he acted in making
sale of said lands. We bave beretofore referred to section T90, wbich,
among other things, provides that a marshal or his deputy, after tbe
expiration of his term of office, shall hâve power to exécute ail such
precepts as may be in bis hands at the time of such expiration of of-
fice. As to such precepts, until tbey are executed, be is still mar-
shal, and subject to ail officiai duties and responsibilities imposed
upon bim by law. Tbe statute, in conf erring tbe power, imposed the
duty of exercising that power as far as required by law ; and within
such limita, tbe marshal, by necessary implication, is entitled to
bave and enjoy tbe rigbts and privilèges incident to such officiai po-
sition ; and is also invested with the authority to use- ail légal means
whiab may be appropriate and necessarj' to enable him to exécute
the power cpnferred, and perform the duties imposed by law; and he
must, in such matters, obey the proper orders and directions of tbe
court to wbich such precepts are returnable. Bump, Fed. Proc. é82.
In making sale of land under a writ of exécution, the marshal acts
under a power conferred by law, and wben this power is properly ex-
ercised by a sale, tbe title of tbe judgment debtor passes to the pur-
chaser, but it is not perfected until a deed is executed wbich bas re-
lation to the date of sale. McArt,an v. McLaughlin, 88 N. G. 391.
As the desd in this case cannot be made properly until the late mar-
shal, by an amended return, furnishes a more complète description
of tbe land sold hy him, the process may be regarded as still in his
bands unexecuted, and he may be directed by this court to amend
his return so as to furnish information to the présent marshal by
which he may finish tbe exécution of a power and perfect title by
making a proper deed. The petitioner is elearly entitled to the prima
facie évidence of tbe location of said lands, which will be afforded bj'
tbe return of the officer who made the sale.
It is therefore ordered that the clerk of this court send said writ of
exécution to the late marshal, R. M. Douglas, with instructions to
direct bis deputy to amend the return so as to set forth a more spé-
cifie description of the boundaries of tbe lands sold by bim. If tbe
said marshal f ail to give such directions, be is hereby ordered to show
cause at the next term of this court why the amendment should not
be made. If the amendment should be made as directed, then tbe
présent mapshal, Thomas B. Keogh, is ordered to perfect tbe title of
the petitioner by executing a deed for such lands, as required by sec-
tion 994, Eev. St.
IN BB LOWE. 5S9
In re Lowe, Bankrnpt.
iBittriet Court, D. Indiana. 1884.)
1. BANKRUPTor— Feaudulent CoNvayANCB bt Bankhupt — WHKir JUDOaCBHT
Becombs LaEN.
A judgment recovered, défendant having meantime made a fraudulent con-
veyance of his property, is deemed to hâve attached at the date of its rendition
as if the fraudulent conveyanee had never been made.
2. 8amb— Who to Bring Suit to Ann0L.
An action to annul a fraudulen t conveyanee by a bankrupt can be brought only
in the name of the assignée. Faiiure, tlierefore, on the part of a créditer to
anticipate the assignée in bringing such action cannot be deemed a lack of
diligence.
3. Samb — PBioRiTr OF JnDGMENTS AS Liens — Pabtnebship and iNMvœtTAL
Claims.
Under the statutes'of Indiana a judgment against a fraudulent grantoris
made a lien, and accordingly he who obtains the flrst Judgment is flrst in dili-
gence, and, exc^t as against innocent purchasers of the fraudulent grantee,
iîrst in right. But this rule is subject to the priorities, respectively, of part-
nership and individual creditors in and to partaership and individual prop-
erty.
4. 8aME— ASSIGNEE RePBESENTS AM, ClîEMTOBB ALIKB.
Assignée represents ail creditors alike, and his recovery of property TVTpng-
f iilly conveyed must redound to the beneflt of ail interested, according to their
several interests.
On Exceptions to Master's Eeport.
Taylor, Rand é Taylor, for themselves.
McMaster é Boice, for assignée.
Wobos, J. The facts shown by the report of the master are to the
effèct that on the second day of January, 1877, Taylor, Eand & Tay-
lor recovered, in the superior court of Marion county, a judgment
against Nahum H. Lowe. Lowe owned real estate in Marion county
which, before the rendition of that judgment, he had conveyed to an-
other with intent to cheat his creditors, the grantee not being a good-
faith purchaser. After the rendition of this judgment Lowe was ad-
jndged a bankrupt. The assignée ' afterwards obtained a dëcree
against the grantee in said conveyanee, declaring the same void; and
Taylor, Rand & Taylor having presented a claim that their judgment
constituted a lien upon the property from the date of rendition, the
court ordered that the assignée sell the property and report the pro-
ceeds, and that ail liens be transferred to the f und. Upôn thèse facts
the master reports that Taylor, Bànd & Taylor bave a lien àffclaîmed
which ehould be flrst satisfied, The assigne© insista that thia is not
so ; that the judgment did not constitute a lien so long as the title
remained in the fraudulent grantee; and that the decf ee setting aside
that sale, rendered at thé suit of the assignée, inured fo the benefit of
the eistate — that is to say, to the benefit of ail creditors alik^ij This
conclusion is based mainly upon the proposition that the assignée,
having been first to institnte suit to set the fraudulent conveyanee
aside, became entitled, by virtue of his superior diligence, to prefer-
SaO FEpEBAIi REPOSTEB.
ence over a judgment créditer who had failed to bring any euch suit.
It seems clear, ander tbe Indiana St^tutes, (Eev. St. 1881, §§ 608,
752,) that the judgment of Taylor, Eand & Taylor became at once,
upon rendition, a lien upon the real estate in question. Section 608
déclares tbat.such judgmeuts "shall be a lien upon real estate and
chattels real, liable to exécution;" and by section 752 it is enacted
that "lands fraudulently conveyed with intent to delay or defraud
ereditors" shall be liable to ail judgménts and attachments, and to
be sold on exécution agaînst the debtor, It bas been determined,
too, that the sale upon exécution may précède any suit or pro-
ceedings to set aside or annul the fraudulent conveyance. Frakes
y. Brown, 3 Blaekf. 295. It is not deemed necessary now to déter-
mine whether or not there may be a race of diligence between the
owners of différent judgménts in Buch a case, or whether or not,
when, the conveyance ha,s bèeh set àside at the suit of any of them,
the lien of eaeh judgment must be deemed to bave attaehed at the
date of its rendition, as if the frauduient conveyance had never been
ihade. The latter would seem to be the logical conclusion. The
complaint to set the conveyance aside must aver the facts which
shciw that the property is subject to the lien of judgménts already
rendéred àgàinst the fraudulent gràntor, and the complainant ean-
not well disclaim or escape the resuit ; certainly not on the prêteuse
that he had, in ignorance of the. facts orof the légal conséquence, put
forth effort or incurred costs -whioh should not be turned to the ben-
efit of another. Indeed, the very doctrine of superior diligence would
Bèem to lead tothe same conclusion, when properly applied.
-■: Uudec the ^tatu te a , judgment against the fraudulent grantor is
made a lien, and cons^quently he who obtains the first judgment is
first in diliger^ce, and thereafter, exeept as against innocent purohas-
ers of the fraudulent gçantee, should be deemed to be first in right,
unless by. àetual negleet or abandônment of his claim, or by other af-
firmative act, he lose hia préférence. If this is not so, a judgment
creditor, who delayed f oi; a day in ptocuring the issue and levy of an
lexecution, or in commenoing proceedings to annul the fraudulent
transfèr, might fin'd himsèlf postponed to another, who had no judg-
ment, but, in the mean time, had brought a single suit (as may be
done in this state) to obtain a judgment and to avoid the fraudulent
deed. On. this subject see Hardy v. Mitchell, 67 Ind. 485; Hanna v.
'iÀ.ebkef,,S>.é: Ind. 411. But, however this may be, I think it quite clear
that thft doctrine proposed cannot apply when the fraudulent cpnvey-
ancehas been annulled at the instance. of the assignée in bankruptcy
of the fraudulent grantor. By express provision of the bankrupt law,
ail property of the bankrupt, conveyed in fraud of bis creditors, is,
by virtue Oi. th,© adjudication, and by the appointment of an assignée,
vested in the assignée, to whoni also the power and authority are
given "to manage, dispose of, sue for, and recover ail his property or
«state, real or personal, debts or effects, and to défend ail suite at law
UNITED STATES l^. BJJBBELL. 59 1
or in equity pending against the bankrupt." ' 14 St. 52S, AccoM-
ingly it hia's been held, and i3 well settled, that after the appûintment of
an assignée in bankruptcy, an actioiï by a créditer to set agide à fraud-
ulent conveyance of the bankrupt or to reach, in any way, property
fraudulently transferred.cannot be maintained, and that the ïemedy
must be had in a suit or action by or in the name of, thie assignée.
Glenny v.Langdon, 98 U. S. 20; Trimhle v. Woodhead, 102, U. S. 647;
Moyer v. Dewey, 103 U. S. 301. The bankrupt law, moreover, pjro-
vides for the protection of existing liens upon ail property. yested in
the assignée. It follows clearly that the assignée is the représenta-
tive of ail ereditors alike, and if he obtains a decree for the reoovery
of property fraudulently conveyed, it ia for the benefit of ail interested,
according to their respective interests. There is certainly no room
for the proposition that the judgment creditor, by failing to sue in his
own name, (when forbidden so to do by the law which gave the as-
signée the right to sue,) lost any right which he had, and by superior
diligence might bave saved. ; .
Another objection to the report is that the judgment of Taylor,
Eand & Taylor is not in fact the oldest, and therefore not entitled to
préférence. It is in fact not the oldest unsatisfied judgment; but
the older judgments against Lo«;e were ail rendered against him as
one of a firm, and in favor of partnership ereditors ; while the judg-
ment of Taylor, Eand & Taylor is for the indiyjdual debt of Lowe,
and therefore properly first payable out of this fund which was de-
rived wholly from Lowe's individuàl property. Hardy, y. Mitchell,
supra; Weyer V. Thornburgh, 15 Ind. 125; Dean v. PhilUpê, 17 Ind.
406; Bond v. Nave, 62 Ind. ^05; Nat. Bankv, Locke, 89 Ind 428.
Judgment liens, except hx Indiana, as against innocent; purchasers,
are subjeet to prior equities in the property. Freem. Judgm, '§§ 366,
357; Glidewell v. Spaugh,26 Ind. 319 ; Jonesy. Uhoads, 74.1ndr 510;
Huffman v. Copeland, 86 Ind; 224, and cases cited. . ;
It follows that the remainder due upon the judgmaut of Taylpr,
Rand & Taylor should be first paid. So ordered. , i,
United States v, Eussbli,.
{District Court, "W-D, Texa». 1884.) ". , .: , .
liVIDENCK— SiKtLÀ'B BtT UNCONNECTED TRANSACTIONS— QnrLTT.-kKOWLEDGB.
la an indictment for the falsification of an accouht, other fâlsé accbuiits
made by the défendant at about the same time may be fntroduced in evMeiice
for the purpoae of jiroving guiJty knowledge.
Falsb Account.
An aceount including items for sei'vices not actually rendered or moneys not
actually paid is afalse aceount. :,..;.;,. ; -v
592 FKDEBAL BEFOBTEB.
3. Bame— Bt Means of an Agent,
An offlcer who conspires with others to obtain money hy false aecounts is
giiilty of falsification though he may be ignorant of the items of any particu-
lar account.
TuRNBR, J., (charging jury.) The law of the land is that every man
is presumed to be innocent until his guilt is established by the évi-
dence in the case beyond a reasonable doubt. By a reasonable doubt
is not meant a hypothetical, spéculative doubt, but a doubt arising
froni a want of sufficient évidence to satisfy the judgment and reason
of the jury that the défendant is really guilty as charged. In order
to convict the défendant you should be satisfied from the évidence
(1) that the account set out in the indictment is a false account;
(2) that défendant made, or caused the same to be made, if not
actually made by défendant, bat by some other person acting for him
and under his direction and authority, then he caused it to be made;
(3) yOu must find that the same was made with the view and pur-
pose of presenting the same to the first auditor of aecounts of the
treasury of the United States for approval; and (4) you must find
that the défendant knew the account to be false.
You must résolve each of thèse propositions in the affirmative be-
fore you should return a verdict of guilty. The three first proposi-
tions you must détermine from the évidence whieh relates to the par-
ticular account mentioned in the indictment. When you corne to the
considération of the fourth proposition, then, and not till then, you
may consider the other aecounts that hâve boen introduced in évi-
dence. You may ask why were thèse aecounts put in évidence at ail?
The ansvsrer is, the law bas made guilty knowledge an indispensable
ingrédient in the offense, and you are required to pass upon this élé-
ment. The difficulty of proving by direct évidence what another man
knows you will readily discover. The law requires the beat évidence
that the nature of the case admits of. And the idea being, as applied
to this case, that the défendant would be more likely to make out one
false account by accident, mistake, or otherwise, than he would to
make several. In other words, the likelihood that the défendant knew
the true character of the account would be strengthened in proportion
to the number of acts of a similar character done at or about the
same time. To illustrate, suppose you lose your horse; you find it
in the possession of A. ; he asserts that he took the horse by mistake ;
but you find that about the same time he took horses belonging to
several others ; would not the fact that he took others about the same
time be proper évidence to be considered in determining the question
whether the particular taking was or not by mistake? The chances
of mistake decrease in proportion as the alleged mistakes increase.
I hâve tried by this branch of the charge to lay down the rule and
also to give you an idea of the réason upon which it is based, and
upon this point it is for you to détermine from ail the évidence
whether défendant knew the account to be false, if false it is. There
UNITEU STATES V. BDSSELIi. 593
is no conflict in the évidence as to the character of the Jones account.
It is sbown that the défendant verified the account mentioned in the
indjetment, together with others, by his oath, stating that the same
were jmt; that the services charged for had been actually rendered ;
and that the expenditures therein stated were actually paid in lawful
money, as he believed, etc. This oath came properly in the Une of
his officiai duty, and it is upon the îaith of this oath in a great meas-
ure the authorities act in approving and paying thèse aocounts. The
defebdant bas been upon the witness stand, and he states that, as a
matter of fact, he did not know that the account mentioned in the in-
dietment was and is a false account. The law has given to défend-
ants the privilège of testifying in their own behalf. The weight to
be given to his testimony is left with the jury to détermine just as
they détermine the weight of the évidence of any other witness. If
the jury believe bim, thèy act upon his évidence accordingly. If, how-
ever, there is a conflict between his évidence and other évidence in
the case, and the facts and circumstances in évidence which they do
believe are inconsistent with the defendant's testimony, then, of
course, the jury disregard his évidence. The jury being the exclusive
judges of the weight of the évidence, and in the exercise of this func-
tion juries are not to lay aside their powers of reason and discrimi-
nation or their common sensé.
What is a false account, within the meaning of the statute, as the
same applies to marshals' accounts? Upon this point I charge you
that if an account is made out for services that bave not been ren-
dered, it is to that extent a false account. If an account is made
out for money actually paid out and expended, which, in fact, had
not been paid and expended, the account is to that extent a false ac-
count. The mode of keeping marshals' accounts, as stated, is this :
The marshal makes an estimate of moneys needed by him to defray
expenses in serving process and in holding courts, and he makes a
réquisition for sueh amount. A draft is drawn upon the proper ofiS-
cer in favof of the marshal for the amount furnished, and the mar-
shal is charged with that amount. To balance this or thèse charges,
the marshal makes out his verified accounts, showing the actual serv-
ices rendered and moneys actually paid out, for which he is ered-
ited, and when the supply is exbausted he makes another réquisition,
the government proceeding upon the pay-as-you-go System. When
a man seeks and obtains a public office of confidence and trust he
undertakes to bring to the discharge of the duties of that office care,
caution, skill, and diligence proportionate toa full and fair discharge
of the duties imposed, and if he knowingly shuts his eyes to passing
events pertaining to a faithful discharge of the duties imposed he is
guilty of négligence and dereliction of duty in case the confidence
and trust reposed is thereby violated. While this is true, the law
makes knowledge of the falsity of an account that is made out by
the marshal, or by his direction, a necessary élément in the offense,
v.l9,no.8— 38
594 MSDERkh ; BBPOBTEB.
which must beproven to the satisfaction of the jury before convic-
tion. Still, it is proper for th.e jury to consider the nature of the
trust, the duties thereby imppsed,; the intelligence of the party, the
likelihood of knowledge upon a given point in issue, togetber with ail
the évidence before thera upon the question of actual notice.
It is urged by the government that the évidence establishes as a faot
that the défendant entered into a conspiracy with his clerks or depu-
ties, or both, to the end that accounts should be made out, not for the
actual services rendered, not for the actual expenses incurred, but for
ail such amounts as could be gotten through the departments at Wash-
ington and paid. If from the évidence you find that there was such
an understanding between the défendant and any one or more of his
clerks or deputies, and you further find that the account mentioned
in the indictment is a false account, and was made in pursuance of
the understanding that accounts were to be made out that should be
false, then in that event I charge you that the law holds défendant
guilty, the same as if he hàd made out the account himself, and be
eannot protect himself by saying that he did not know the real char-
acter of the account, The rule of law being that when persons com-
bine to do an unlawful act, tbe act of one is the act of ail, and notice
to one is notice to ail, so far a? it relates to acts done in furtherance
of the common design and purpose. This question you will déter-
mine from ail the f acts and circumstances in évidence before you
touchiug this particular question. It is insisted hère by the able
eounsel for the défendant that the wrong, if any there be, is charge-
able to the clerks and deputies of the défendant. In regard to that,
I bave this to say: The United States marshal bas the absolute con-
trol of the business, as well as of the accounts of his office, and if
from the évidence you believe tbat his clerks and deputies made out
false accounts, but that the same was done with bis knowledge and
consent, then, as he had control over them, it would be imjust to
cast reproach and obloquy upon them, they beinig but the instruments
in the hands of the défendants to do the bidding of their principal,
and in that event the conséquences should be visited upon the défend-
ant, and not upon tbose who had simply carried out the will and di-
rection of their superior, as that wquld be making a scapegoat for the
défendant of the agents he had employed to do his bidding in the
matter, and for which he more than they should be held responsible,
if responsibility ther« be. As ,1 hâve said, the accounts in évidence,
save and.except the one set put in the indictment, are permitted to
go to you only tp aid you in determining the question whether the
défendant knew the account mentioned in the indictment to be a false
account, and further than that they hâve UiOthing to do with your délib-
érations. But it is proper fpr.j'^ou to ask, could ail thèse things that
hâve been detailed by the évidence be done, and the défendant be ig-
norant thereof ? for the évidence you bave listened to, if true, shows a
fearful condition of things, and you hâve a right to inquire for whose
UNITED STATES Vi EUSSELL. 595
interest hâve ail tbese things been doue, Prom an honest, actual ex-
pense account, no money eould legitimately be realized by the défend-
ant, or any one else. You hâve heard anji seen that a large par cent, of
the accouats in évidence are what is called actual-eipense acoounts,
and you hâve been told what disposition was made of the money, as
well as how those accounts were made up, and I charge you that if
an actnal-expense accolint is made ont, and vèrified as auch, when in
fact the amount of moneys therein mentioned as expended were not
in fact actually paid, the same is to that estent a false account.
It is'urged that, as Sheely and McFarland had in fact spent time
in endeavoring to arrest Smith and other persons that were acoused
of mail, robbery, that the account isnot false, beeause the same char-
acterof service had been performed by Sheely and McFarland for the
government. The accounts should show just who rendered the service,
and justwhat the services were, and just what was acttially paid, and to
whom. The accounts of Sheely and McFarland are before you, and if
you shall find that they hâve been paid, or hâve been charged in their
individual accounts for services rendered on other process, covering the
same period as charged in the Jones account, it would follow that both
cannot be true. One deputy may be allowed a per diem for endeavoring
to make an arrest, but if bis own account shows that he bas charged for
a given day or days, it would be a false charge to put a charge for per
diem for the same days in somebody else's account, so as to reap the
benefit thereof and get double or treble per diem pay. In other
words, one deputy cannot hâve bis own per diem and that of another
for the same time. The accounts other: than the Jones account, thstt
hâve been given in évidence before you, are not for your considéra-
tion, except so far as they are shown to be false, and then for the pur-
pose only, as I hâve heretofore stated.
It is ui-ged that marshals could not malte , anything . by charging
only their fées as allowed by law. If it be true that the government
is a hard taskmàster, it must also bë Mmitted that no man is com-
pélled to hold office, and a marshal is at liberty at apy time to resign;
80 that the hardship, if hardship it be, is not a forced one.
As to the plea of a former conviction, i hâve this to say to you;
That the record introduced by the défendant disproves the plea, and
that matter constitutes no défense hère, and you will not consider it.
The case, so far as it relates to Mr. Wolf , bas been dismissed, and
with him as a défendant you bave nothing to do.
I am not unmindful of the unrest that you bave felt at what may
hâve seemed to you as unnecessary delays in reaching a final déter-
mination of the case. Bat you must remember that from the first
Tuesday of last month nntil the dose of the term in Austin next July,
this icourt may b^ iu almost constant, session, and that the district
attorney, as well as myself , constantly employed, and that the mind
as well as the body cannot stand a constant strain, and that therefore
some little relaxation may be the best eoonomy of time. .Idonot say
596 jr£D£BAL BBPOB'TBB.
this because I hâve discovered any want of attention; quite the
contrary ; but I am conscious of your désire to retum to your homes
and to your familles, and to your daily avocations. Justice demands
a patient and careful investigation in order to arrive at a just con-
clusion. The case is of great interest both to the govemment and to
the défendant, and the responsibility now rests with you to ascertain
the truth, and when you shall hâve doue so, it will be your bounden
duty to déclare it without référence to conséquences. And your verdict
will simply be, "We, the jury, find the défendant, Stillwell H. Eussell,
guilty as chargea in the iudictment;" or that "We, the jury, find the
défendant, Stillwell H. Eussell, not guilty," The question as to
whether the défendant intended to defraud is not in the case, as that
is not made an élément in the offense charged.
Verdict of guilty, April 4, 1883. Défendant sentenced to two years'
confinement in penitentiary at Chester, Illinois.
MoEGAN and others v. Eogees.
{Circuit Court, V. Bhode hland. February 12, 1884.J
Tkade-Mabk— Tbakspeb bt Gbnkeal Contbtakcb.
A trade-mark will pass under a gênerai conveyance of ail the assets and ef-
fects of a firm, though not specifloally designated.
In Equity.
Nathan F. Dixon, J. Van Santvoord, and A , Chester, for complain-
ants.
Benj. F. Thurston and J. C. B. Woods, for défendant.
CoLT, J. It appears by the bill and évidence that the complain-
ants had, from time to time, advanced large sums of money to the
firm of J. Miller & Sons, who were carrying on the business in Provi-
dence, Ehode Island, of the manufacture and sale of certain proprie-
tary medicines, notably the compound known as Dr. Haynes' Arabian
Balsam, To seoure the complrtinants, Miller & Sons executed a
chattel mortgage to them, dated June 1, 187.5. On or about March
22, 1876, the complainants took possession under the mortgage and
proceeded, through an agent, to carry on the business of the manu-
facture and sale of thèse medicines, Subsequently, on February Va,
1877, Miller & Sons oonveyed to the défendant, Eogers, the exclusive
rightto use their trade-marks, and to make and sell their médicinal
compounds, The présent suit is brought to restrain the défendant
from iising thèse trade-marks, The main question in the case turns
upon the meaning of the folio wing clause in the mortgage:
UOBQAN V. BOOEBS. 597
"The following articles of personal property, now in our possession, and
now in anci tipon the premises Icnown and designated as numbers (8) eight
and (12) twelve High street, in said city of Providence, viz.: The enlire
property, stoclî, furuiture, and flxtures, and otlier articles, now in and upon
said premises, togetlier witli ail debts and booli aecounts, assets, and efiEects
of every Icind and nature, belonging to said flrm of J. Miller & Sons."
The complainantB contend that the above récital includes ail trade-
marks then owned and used by Miller & Sons in their business on
High sti^eet, and that such was the intention of the contracting par-
ties. The défendant claims that this description does not oover any
trade-mark, bat only the property, stock, aecounts, etc., belonging to
the firm ; that such was the intention of tha parties ; and that the
proof shows that at most, and independent of the mortgage, the com-
plainants hâve a paroi license to use the trade-marks until reim-
bursed for their advances to Miller & Sons. The clause of convey-
ance in the mortgage is very broad in its tçrms. Clearly the language
bears the construction, and will bear no other than that the whole
property of Miller & Sons, upon the premises oceupied by them, to-
gether with their assets of every kind, passed by way of mortgage to
the complainants. The description plainly identifies the property
and states what is conveyed. It is not a case where there is an am-
biguity by reason of two inconsistent descriptions in the same instru-
ment, nor is it a case where the instrument fails to point ont the sub-
ject-matter so that a stranger, after examination, might be deeeived,
but in plain and unequivocal language, and for the large considération
of $48,500, the entire property of the firm of Miller & Sons, at their
place of business, and ail the firm assets, are conveyed by way of
mortgage to the complainants. There is no reason why a trade-mark
cannot be conveyed with the property with which it is associated. As
an abstract right, apart from the article manufactured, a trade-mark
cannot be sold, the reason being that such transfer would be produc-
tive of fraud upon the public. In this respect it differs from a patent
or a copyright. But in connection with the article produced, it may
be bought and sold like other property. It constitutes a part of part-
nership assets, and is properly sold with the firm property. Browne,
Trade M, §§ 360, 361; Hallv.Barrows, 10 Jur. (N. S.) 65; Ainsworth
v. Walmsley, 35 Law J. Ch. 352; Kidd v. Johnson, 300 U. S. 617;
Wallon V. Crowley, 3 Blatchf. 4^0; Congress é Empire Spring Co.v.
High Bock Congress Spring Go. 57 Barb. 526, and 4 Amer. L. T. Rep.
168; Dixon CruciUe Co. v. Guggmheim,2 Brewst. 321. For a trade-
mark to pass under a bill of «aie it is not necessary that it should be
specifically mentioned. In Shipwright v. Cléments, 19'Weekly Eep. 599,
there was a sale by one partijer to the other of ail his interest in the
partnership, stock in trade, goods, chattels and effects, book debts,
moneys in the bank, and ail other property not being on the premises,
the défendant covenanting that he would not carry on the trade
within one mile of the premises, or in any way affect the business to
598 FBDBBAL BBPOB'tEB.
be thereaftfer carl-ied on by the purchaser. The court held that tliis
•was a Baie of the business, and tbat a trade-mark passed under such
a sale, ■whether speçially mentioned or not. If a trade-mark ia an
asset, as it is, there is no reason why it should not pass under the
term assets, in an instrument wbich conveys the entire partnership
property. To hold tbat the trade-mark is not included in tbis mort-
gage, is to say that the moât valuable part of the partnership prop-
erty is not covered by the words assets and effeots of every kind and
nature. -
' The évidence, in our opinion, strongly confirms the construction
we hâve put upon the instrument, and shows that sach was the intent
of the parties, The complainants proceeded to take possession un-
der the mortgage of the entire property and assets of the firm, to use
the trade-marks, and to manufacture and sell the médicinal com-
pounds. At the time possession was taken, one of the Millers sent for
Mr. Morgan, and surrendered the keys. Two of the Millers for months
after this continued to sell the medicines under the direction of the
agent who was carrying on the business for the complainants. The
annual royalty due Dr. Haynes the complainants assumed and paid.
The défendant, Rogers, as shown by his letters, understood that thé
complainants had sueceeded to ail the rights of Miller & Sons, and
were running the business. He says, however, that in the fall of
1876, after a consultation with the Millers, and after what they said,
he took légal advice, and found that the complainants had title un-
der the mortgage only to the goods and effects of Miller & Sons. But
that his mind was not clear on the question of the trade-marks is
shown by the faet that subsequently, in his conveyance from Miller
& Sons, of Pebruary 13, 1877, under which he now claims the right
to use thèse trade-marks, there is a provision that if, at the expiration
of two years, he should not be in the exclusive enjoyment of the trade-
marks in conséquence of any act done by the Millers in conveying or
incumhcring them, then, at his option, the annuities to be paid to the
Millers under the agreement were to cease. The fact that the com-
plainants agreed to tum over the property to the Millers after they
had been paid cannot operate to divest them of the exclusive right to
the trade-marks if they had acquired such under the mortgage. With
such exclusive right they, as well as Miller & Sons, might hope the
debt would soon be extinguished, but without such exclusive right such
a resuit would be most improbable.
Upon a proper construction of the clause of conveyance in the
mortgage, and upon the évidence showing the intent of the parties, we
are sa!tisfied that the relief prayed for should begranted, and that
the défendant should beenjoined from the use of the trade-hiarks.
TCTTLB ».' OliAFl/I». èW
TuTTLB, Trustée, etc., v. Olaiflin and others.
{Circuit Court, a. D. New York. March ;10, 1884.) , ■. .
1. Patents— CRiMPJNG-MACHmB— Patent No. 37,033.
Theflrst daim of patent No. 37,033, for an iraprovement in f rîUing and crimp-
ing -machines, being limited by its terms to a combination in which tke blade
acts to space the crimps as well as to form them, is not infringed by a crimper
which does not space the crimps.
2. Samb— Ckimpbr and Smoothek — Second Claim.
The spécifications for the second claim of the same patent, describing a com-
bined crimper and sraoother, point out thç method in which the parts can oper-
ate without spacing the crimps, and the claim is iufringed bya machine which
crimps and smooths the cloth bj a simliar device.
G. B. Stoughton, for complainant.
Vanderpoel, Green é Cuming, for défendants.
Wallace, J. The complainant's patent, (No, 37,033, Crosby & Kel-
logg, patentées, granted Deeember 2, 1882,) for an improvement in
frilling and crimping machines, deseribes and olaims devîces which
constitute distinct inventions residing in the saine machine. The
devices forforming and spacing the frill or orimp, and those for sé-
curing them in place after it is formed, aceomplish distinct results,
both of which are useful, and either of which would support a patent.
The devices also co-operate to make the stitcbed plait. The sewing'
mechanism is essential only for making the eoàaplete or stitched plait.
The claims of the patent cover ail the devices in combination, and-
also the sub-eombinations, which are operative only in forming and
spacing the frills or plaits. The first claim covers the crimping de-
vices with and without the stitching mechanism. It is limited, how-
ever, by its terms to a combination in which the blade or crimper
acts to space the crimps' as well as to fOrm theth. The défendants'
crimper does not act to space the crimps, and they do not therefore
infringe thjs claim. The second olaim is as folToWs: "In combina-
tion, a criiïiper and a smoother, substantially such as described, and
acting substantially as specified, to fold the crimps to an edge." The
crimper described in the spécification is a blade actuated by a cam
and spring, and its mode of opération is to engage the cloth, advance
and make a crimp of the cloth lying between it and the holder, and
shove the cloth along nnder the; holder; it then retreats for another
advance. While it moves forward to crimp it acts as a crimper.
After the crimp is formed it acts as a spacer to space the crimps
apart, and as a pusher to force the goods through the machine. The
space between the crimps dépends uçon the length of advahce of the
crimper after the èrim'p 'is forïnéd, which îs determined'and made
adjustable by other mechanism. The' crimper which is included in
this claini is one which is to operate in combination vvith thé other
necessary oo-operative parts substantially in the manner thfls pOinted'
out. It may operate eiïeétively to fold the crimp to an edge t^ithout
600 FBDBEAL EEPORTEB.
spacing tbem regularly, and in tbis regard may be an improvement
upon th« Singer, or Arnold, or Magic ruffle contrivance. In describ-
ing their invention, the patentées state that the invention "consista
essentially of two parts, — the one for forming tbe crimps, and the
otber for securing them in place after tbey are formed;" and they
then proceed to say that "the mechanism for forming the orimps con-
sists of a crimper whioh both forma and spacea them." The spécifi-
cation plainly describes how the parts can operate to fold the crimps
to an edge without spacing them. The language of tbe claim ia apt
and précise to cover such a combination, and clearly distinguisbes
the functions of the operative parts from those assigned to tbe parts
in the first claim.
While the défendants' machines do not employ a crimper which
opérâtes independently tospace the crimps, their crimper and smootber
eiïect the opération of folding tbe crimps to an edge, and their de-
vices in tbis bebalf are tbe substantial équivalents of tbose in tbe
combination described in tbe second claim. In tbeir machines the
spacing is done by revolving rolls or holder, which, after eacb crimp
is formed, advances tbe cloth, while tbe blade is retreating tbrougb a
distance equal to tbe space between tbe successive orimps.
The second claim and tbe fourth claim of tbe patent are infringed.
Tbe fifth claim is not infringed, as the défendants hâve no auxiliary
smootber sucb as is described in tbe patent.
The decree is ordered for tbe complainant, adjudging infringment
of tbe second and fourtb claims of tbe patent.
Taft V. Steere and otbers.
(Oireuit Court, D. Bhode Island. February 9, 1884.)
1. Patents— Improvement in Looms — Shuttle-Uace.
The characteristic feature of the second claim, patented hy letters No.
63,853, for improveraents in looms, is the vertical spring adjusted over each
end of the shuttle-race ; and a contrivance for checking the flight of the shut-
tle by other means is not an infriagement.
2. Same — Adjtistablk Nosk-Piecb.
The third claim of the same patent, if valid at ail, is not infringed without
the use of an adjustable nose-piece upon the cam.
In Equity.
A. J, P, Joy, for complainant.
Eugène F. Warner and Walter B. Vincent, for défendants.
Before Lowell and Colt, JJ.
CoLT, J. The complainant in his bill charges the défendants witb
the infringement of certain letters patent for improvements in looms,
dated March 26, 1867, No. 63,853, issued to James J. Walworth and
TAFT V. STEEEE. 601
Gustavus E. Buschick, assignées of Caspar Zwîeki, the inventor. By
subséquent assignments the plaintiff became the owner of the patent.
The alleged inf ringements relate to the second and third claims. The
second claim is as follows :
"In combination witb the shuttle-race the springs. H, at either end, ar-
ranged over the top of tHe shuttle-path, and provided with means for ver-
tical adjustment substantially as described."
The spécification says :
"Above each end of the shuttle-race, E, are springs. H, each fastened to
holding-pièces, e, on the side of the race, so that they can be adjusted in a
vertical direction, and provided with a set, or thumb-screw, at/, for the pur-
pose of further adjustment of the free end of said spring, H, in a vertical di-
rection. The function of thèse springs. H, is to stop the shuttle gradually,
and without recoil, and to-keep it in Its proper position on the shuttle-race
to receivethe blows of the picker staffs, T,"
The essence of this claim is a spring, capable of vertical adjust-
nient, over each end of the shuttle-race, to cheok the flight of the
shuttle, and keep it in its place. The défendants do net use this.
Their looms hâve no spring over the top of the shuttle-race, and no
means of vertical adjustment. They use a pièce of wood screwed on
to the top of the shuttle-race, or a narrow pièce of wood screwed on
to the inside of the top, and the évidence goes to show that thèse hâve
been in use for a period of 35 years. The side of the shuttle-box in
the défendants' looms is of such shape that it opérâtes to check the
flight of the shuttle, and it also appears to be adjustable, but the im-
portant élément in t^e plaintiff's claim is a spring on the top of the
shuttle-box, capable of vertical adjustment, and this we do not find,
nor any équivalent therefor, in the défendants' machine, and so there
is no infringement.
The third claim is as follows:
"In combination with the picker staff of a loom, the cam, N, when pro-
vided with the adjustable pièce, o, substantially as described."
It is not contended that Zwicki was the first to make a cam with
a nose, in two pièces, instead of being solid, but the adjustable char-
acter of the nose-piece upon the cam is claimed as an improvement.
After carefully examining the évidence and exhibits, we are satis-
fied that the cams used by the défendants are not adjustable for any
practicable purpose, that such adjustment is not attempted in their
use; and that it is doubtful, at least, whether there is any utility in
this feature of the patent, supposing the nose-piece to be attached to
the cam exactly as shown in the model. It does not appear that any
looms embodying the improvements claimed in this patent hâve ever
been put in opération.
Thèse conclusions dispose of the two main questions raised in this
case, and we therefore deem it unnecessary to consider any othera.
The bill should be dismissed.
602 TEDEBAIi SEPÔÈtÉB.
Smith îj. HAiiKïAKD and otbers.
{Circuit Court, D. Rhode Island. Eebruary 9, 1884.)
Motion for CorfeBiiPT — Plain- Evidenob Rëquired.
To sustain * motion for conterapt on account of the violation of an injunc-
tion issued to restrain the infringeraent of a pateat, it mustappear olearly and
indisputably that the infringement continues.
•' In Eqiïîty. 'Motion for contem-pt.
John L.'S. lioheHs and George L, Boberts, for complainant.
Wilmarth.îi.. Tburston' anà Éenj. F. Thurston, for défendants.
. Before. Lo-WBLL and CoLT, jj. .
CoLT, J. The defend9,nt3 oontend that they are not violating the
hijunction recently granted bythis court byreason of certain changés
made in their machine. The plaintiff claims that the défendants
still infringe the first and seventh claims of the lacing-hook patent,
as well as the patent for lacing-hook stock. The lacing-hook patent
is fbr a combination. One of ' the éléments of the feeding device
mentioned in the first and sevenfch claims is a spring inserted in the
groove along which the stock ia fed, which opérâtes to raise the stock
and elear it from the dies. In their présent machine the défendants
nse no spring. The inclines in the groove of the feeding mechanism
are not, in our opinion, the (équivalents of the spring, and do not per-
form the same function, and, as shown in the affidavit of Mr. Een-
■wick, may be disper^ed with altogether. By leaving out one élé-
ment of te combination a serions doubt is raised as to the défend-
ants' infringement.
As to the lacing-hook stock patent the position is strongly urged by
the défendants that the patent is for: stock with a séries of alternats
necks and indentations, and that in their présent machine they only
use a single neok and indentation at the end of the stock strip, and not
a séries. The plaintifif contends that, while at no moment of time a
séries exista, this is dueto the fact that each neck and indentation is eut
out as soon as formed, and that a séries doesexist in order.of time
or successively, as is shown by the successive holes in the waste
strip. It is clear, from the ; spécification and drawing, that the pat-
entée contemplated the co-existence of a séries of alternate necks and
indentations. It is from stock so specially prepared in a séries from
which the blanksior the formation of lacing-hooks were to be eut. It
may well be doubted whether, in view of the terms of the patent and
the prior state of the art, the; .patent can be held to extend to a single
neck and indentation.
Motions of this charaéter are not granted unless the violation of
theinjunction is plain and free from doubt. Walk. Pat. 481; Bird-
sall V. Hagerstown Manu/g Co. 2 Ban. & A. 519; Liddle v. Cory,
7 Blatchf. 1; Welling v. Trimming Co. 2 Ban. & A. 1; Bâte Befrig.
Co. V. Eastman, 11 Fed. Eep. 902.
Motion denied
THE C. D. SEYANT. G^3^
The g: D. Brtant.
{DisMet Court, D. Oregon. March 18, 1884.)
1. SalVaoe by Pilot.
Under the Oregon pilot àct of 1882, (Sess. Lawa, 15,) a pilot is bound to rea^
der aid to a vessel " in stress of weather or in case of disaste^" and he is not
entitled to salvage for such service uniess he is thereby inyolved in "extraor-
dinarj' danffer and risk."
2. Casb in Judgmbnt.
The libelant in a smooth sea and calm Weather boarded tlie Bryant in a thick
fog, while she lay aground at low tide on the outer edge of the middle sand of
the Columbia river, and at the next flood sailed her over into deep water in the
south cliannel, and, after drlfting out to sea in the night, brought her into
port the next morning. Held, that the service of the libelant did not involve
any " extraordinary danger or risk," and that he was only entitled to a pilot's
compensation therefor.
In Admiralty.
Frederick R. Strong, for libelant-
M. W. Fechheimer, for claitoant.
Dbadt, J. The libelant, Henry Olsen, brings this suit to obtain a
decree for salvage against the American bark C. D. Bryant and her
cargo, for services rendered her at the mouth of the Columbia river
on September 4 and 5, 1883. The master of the Bryant, James, P.
Butman, intervening for his interest and that of his co-owners in the
vessel, as well as the owners and consignées of the cargo, answers
the libel, denying that the libelant performed any salvage service on
the occasion in question, and alleging that he acted as bar pilot
merely, for whieh service he was duly paid. The évidence is very
voluminous, and, as usual in such cases, is largely irrelevant, imma-
terial, and répétitions. The material facts appear to be that on Sep-
tember 4, 1883, the Bryant being bound on a voyage from Hong Kong
to Portland, drawing about 19 feet of water, was olï the mouth of the
Columbia river, when, about 2:30 p. m., and near high water, she
grounded on the outer edge of the middle sand in 12 to 15 feet of
water at low tide, and about three miles solith-west of Cape Disap-
pointment light — the sea being smooth, the weather calm, and a thick
fog or smoke on the bar; that about 5 o'clock she was boarded by
the libelant, a bar pilot from the pilot-schooner Cousins, who there-
upon took charge of her; that the vessel lay quietly in her bed in the
sand after the libelant took charge, until the flood tide began to
make, and the wind freshened from the north-west, when with the
aid of her sails and the swell of the sea she rubbed across the sand
some time before 3 o'clock on the morning of the 5th, in a south-
easterly direction, into deep water, and was afterwards carried by the
ebb tide and un easterly wind in a south-westerly direction to se4.,
where she laid off until daylight, and then came in over the bar with
a light breeze and the flood tide, and was taken in tow bya tug, and
brought to Astoria and beached with' three or four feet of water in her
604 FEDERAL EBPOBTBB.
hold; that the vessel commenced to leak before 9 o'clock în the even-
ing of the 4th, and continued to do so until beached in the mud at
Astoria, both pumps being worked continuously in the mean time,
which leak was wholly caused by the displacement of 30 or 40 feet of
the af ter-part of the keel, while on the sand as aforesaid; and that
the vessel is worth $15,000, and her cargo, which consista of rice and
China goods, is worth about |50,000.
Much of the testimony and controversy in the case relates to the
question whether the conduct of the libelant, while in charge of the
vessel, was that of a skillful and diligent pilot or not. For instance,
it appears that soon after boarding the vessel, while the tide was ebb-
ing to the south-west and a light breeze was blowing from the north-
west, the libelant caused the port anchor to be dropped from the cat-
head and went below to change his clothes, which were wet, and take
some rest, where he remained until near 9 o'clock, when, at the sug-
gestion of the master, he came on deck and had the anchor taken
up, because the master insisted that the vessel was surging ahead —
taking chain — and would soon be on the anchor, ail of which the
libelant denied at the time and since. Upon the vessel being brought
to Portland and hove down, it was found there were some bruises and
indentations well forward on her port side, which were thought to
hâve been made by the vessel coming in contact with the fluke of the
anchor while she lay on the sand. . AU of them were mère surface
bruises, the wood in the worst one not being bruised more thau three
inches deep, and were ail repaired by cutting out the bruised portions
and letting in a scarf-piece in its place at a comparatively small cost,
and did not at ail affect the tightness of the vessel or cause her to
leak. So far as appears, the dropping of this anchor was a useless
act. It might prevent the vessel from going off as she went on, of
which there was not the least probability at that time, if ever ; and
it was impossible for her to go further on until the tide flooded. At
the same time it was certainly a harmless act, provided it was taken
up, as it was, before the flood-tide commenced to make ; and even
then, with the heave of the sea and the wind, both from the north-
west or thereabout, the vessel would be driven, not upon the anchor,
but to the southeast of it.
But the management of this anchor, whether skillful or unskiJlful,
does not afîect the libelant's right to salvage. If any damage was
caused to the vessel by the neglect or want of skill on the part of the
libelant in this respect, at most, the amount thereof could only be de-
ducted from the salvage to which the libelant might otherwise be en-
titled. But no claim is made in the pleadings for any damage on
this account, and it is doubtful if any was sustained. If, under the
circumstances, the act was bad seamanship, it is a matter for the
considération of the pilot commissioners, and not a défense to this
suit. Salvage service is a meritorious one, and it bas alwaya been
the policy of the law to reward liberally those who successfully engage
THE C. V. BBTANT. 605
in it, according to the skill, danger, and property involved in the under-
taking. But the drift of American législation and décision is against
the policy of allowing pilots to act as salvors on their own pilot
grounds. It bas been thought or found that the temptation to become
a salvor might induce a pilot to make or allow an occasion for such
service that he might profit by the distress of the ship which he is
bound to navigate. Hobart v. Drogan, 10 Pet. 120; The Wave, 2
Paine, 136; 2 Pars. Ship. & Adm. 271. A pilot is a public officer
whose duties and compensation are prescribed by law; and when act-
ing in the line of fais duty he is not entitled to any other compen-
sation. As was said by Mr. Justice Washington, in the Gme of Le
Tigre, 3 Wash. C. C. 671, while considering the question whether
ofiBcial duty could be compensated by salvage :
"Of this class of cases is that of the pilot who safely conducts into port a
vessel in distress at sea. He acts in the performance of an ordinary duty,
imposed upon him by the law and the nature of his employraent, and he is
therefore not entitled to salvage, unless in a case where he goes beyond the
ordinary duties attached to his eraployment."
The pilot laws of the several states generally require pilots to render
aid to vessels, if possible, on their cruising ground whenever needed ;
and in cases when extraordinary risk and danger is thereby incurred,
provision is made for extra compensation. ïhe duties and compen-
sation of an Oregon Columbia river bar pilot are prescribed by the
pilot act of 1882. Sess. Laws, 15. The act (section 27) givea the
pilot 80 much a foot draft of the vessel for his service; and (section
21) provides that he must keep a suitable pilot-boat, on which he shall
cruise outside the bar "unless prevented by tempestuous weather, " and
he "must at ail times promptly extend aid to vessels in stress of
weather or in case of disaster ; » » * provided, that this section
sball not aSeet any elaim for salvage arising out of services involv-
ing extraordinary danger and risk." Under this section 21 it was
the duty of the libelant to extend to the Bryant wbatever aid she
might need and he, as pilot, could give, and in so doing he did not
entitle himself to salvage or other compensation than that prescribed
by law, unless he thereby incurred "extraordinary danger and risk."
Neither the value of the vessel nor the benefit she reeeives from the
service enter into the question of compensation. Unless the pilot
incurs more than ordinary "danger and risk in the discharge of his
duty, he is only entitled to the ordinary compensation. Whether this
section includes the case of a wreck, propei'ly speaking, — that is, a
vessel abandoned at sea, or stranded and abandoned, — is a question
not necessary to décide in this case. If it does, as it well may, the
pilot must render what aid he oan, as such, and if in so doing he
does not incur extraordinary "danger or risk" he must be content
with the ordinary compensation.
The Bryant was not a wreck in any sensé of the word. She had
]ust gone easily on to a sand-bank, where, if the weather had con-
Q^Q MiCERiSL aEPOBTBB.
tinued as câlin as it tÛen wasj slie might îiave rèmamed for weeka
without any serious injury. Her master and crew were on board,
with reason to believe that the vessel eould be floated oflfat. the next
tide, aa she was ; and, in any event, that the tugs -would corne to her
assistance and pull her off as she went on. Thereis a oonfliot in the
testimony as to whether the libelant boarded the vessel and took
charge of her as a pilot or not. But there is not much room for
doubt abôut the matter. He boarded her from a pilot schooner, say-
ing he was a pilot, and did notbing while on board but a pilot'sduty.
It is true that the libelant testifies that he told the master after he
got on boàrd that his vessel was aground, and that he would not take
charge as a pilot until she was afloat. But this, under the ciroum-
stances, is a very improbable atatement, and was not remembered by
the libelant on his eixamination in chief , nor until he was. pressed on
cross- examination; and it is absolutely denied by the master of the
bark. Bat, be this as it may, the law did not authorize the libelant
to go on board and take charge of the vessel, without the master's
consent, in any other capacity than that of pilot. The Dodge Healy,
4 Wash. G. G. 656. This was not a case for a salvor, but a pilot, un-
less the former had a tug or otheî means external to the vessel at his
command wherewith to pull her ofif the sand, with or without the
aid of the wind, and tide. But the libelant could be oE no aid to the
vessel personally, otherwise than from his knowledge of the tides,
channels, and shoals in the vicinity, and his skill in handling her by
means of her sails, rudder, and anchors, and ail this he was bound
to know and do as a pilot. If the master had possessed this local
knowledge he eould bave sailed the Bryant over the sand into deep
water as well as the libelant. Indeed, nothing was done by the lat-
terexceptto set the sails and wait for the wind and tide, which for-
tunately — I may say providentially — came and pushed her over into
the Bouth channel. But even then, but for the local knowledge of
the libelant, she might, in the darkness and fog, bave gone on to
Clatsop spit. The services rendered by the libelant were thoae of a
pilot; and unless in boarding her, or while on her, he personally in-
curred "extraordinary danger and risk," he is not entitled toanything
more than a pilot's compensation therefor; and this is sowhether or
not his services saved the vessel from a great péril or imminent dan-
ger of destruction.
I hardly know how to discuss the question of the "danger and
risk" incurred by the libelant personally. I suppose that a bar pilot,
when on duty, is always involved in more or less danger. He is
bound to cruise outside the bar, and board and render aid to vessels,
unless the weather is eo "tempestuous" as to prevent it. — as to make
it absolutely unsafe to do so. In this case, in my judgment, the
'libelant did not incur oven the ordinary danger of a pilot service in
that locality. It was a remarkably calm time — not wind enough to
clear the bar of the amoke and fog incident to that season of the year.
THE PBIDB DF AMBEICA. 607
There was a light breeze from the north-wesfc/ and the ebb tide made
a ripple on the sand where the vessel lay aground. . On sighting the
Bryant, the Cousins ran down f roD^i the windward and hove-to some
distance astern and south of the former, from whence the libelant,
with the aid of another oarsman, undertook to pull up to the Bryant in
a small boat, but on aocount of the wind and tide, particularly the
latter, was unable to do so, and had to return to the schooner, which
by this time had drifted further to the Bouthwest. The schooner
then beat up into the vicinity of the Bryant and hove-to again un-
der the lee of the latter, in comparatively still water, from whence
the libelant, with the aid of the oarsman, boarded her without any
troiible; the latter taking the boat backto the schooner, which then,
by the libelant's direction, stood ont to sea. In ail this there was
some time and labor spent, and much of it'because of the libelant's
mistake in not bringing his schooner around under the lee of the
Bryant in the first instance, but certainly no "extraordinary danger
or risk." And while on the vessel the libelant incurred no sueh dan-
ger or lisk; for if there was any immédiate prospect or probability
of hergoing to pièces on the sand or sinking in the deep water, as
there was not the least, ail hands could safely hâve taken to the boats.
But the libelant bas himself fnrnished very satisfactory évidence that
he didnot, at the time, regard this service as dangeroius, or otherwise
than an ordinary pilot service. On Septembér 6th, it appears that
he made out a bill against the Bryant for "pilotage" at the prescribed
rates,; amounting to the sum of $136, and delivered the same to the
agent of the schooner for côllectiop, and as his report of the trans-
action, which was paid accordingly. Nothing then appears to hâve
been said or thought of any olaim for salvage on account of any
unusual danger or risk incurred by the libelant in this service.
There must be a decree for the claimant dismissing the libel, and
for eosts
The Pbidb of Amekica.
(District Court, N. JD. New York. Januàry, 1884.'
Mabitime LiiBN— Dhaft RECoarriziNG THB LrBN. ■
Where a maritime lien attaches tp a vessel, and her owner glves a draft for
the debt, the draft in terms recognizlng, conflrming, and continuing the lien,
an assignée of the draft and claim can enforce tie lien against the vessel.'
In Admiralty.
George N. Btirt, for intervenor.
Webb é Benedict, for owner.
CoxB, J. In Septembér, 1881, the schooner Pride of America was
lying in the harbor of Cheboygan, Michigan, in a disabled condition.
608 FEDEBAL BEPOBTEB.
As it was not possible to proceed under sail, an agreement was made
with the tug George W. Wood to tow her to Milwaukee for |700.
The journey was safely accomplighed and the master and owner of
the schooner — James MoDonnell — executed a draft for the amount.
Indorsed thereon was a mémorandum, signed by him as foUows : "It
is understood this draft takes the place of a receipted tow bill, and
is good against the within-named vessel her owner and underwriters,
until paid." The draft was not paid. Its holder, who is also the as-
signée of the claim, now seeks to enforce his demand against the
remnants in the registi-y of the court, the vessel having been here-
tofore sold upon a deeree in favor of seamen. That the intervenor
has a valid lien there can be little doubt. The vessel was bound to
the owner of the tug, the towage contract was executed and the mari-
time lien fully established. The Queen of the East, 12 Fbd. Eep. 165.
The services rendered were meritorious and satisfactory. It must
hâve been the intention of ail eoncemed that the lien should be con-
tinued. It is hardly conceivable that the tug would bave consented
to release the vessel and give a crédit of 60 days, upon any other
terms. That a sane man would thus surrender ample security and
take in lieu thereof the personal obligation of a étranger, an alien
; nd a sailor, of whose responsibility he could know but little, is not
within the limits of reasonable conjecture. The draft, with the in-
dorsement, was given for a debt for which the vessel was liable, and
it was given by her master and owner. The lien was not thereby di-
vested, but continues till the draft is paid. The Woodland, 104 U.
S. 180. It was the évident purpoee of the owner in executing a
negotiable instrument, that the lien should be recognized, confirmed,
and continued, in the hands of ail bona fide holders.
The reasons for the rule which discharges the lien in cases where
there bas been an assignment of claims for mariners' wages, etc., has
little pertinency to the présent inquiry. The Norfolk and Union, 2
Hughes, 123. Hère the owner of the vessel to which the lien at-
tached, in considération of the crédit given, expressly consented that
the security should remain unimpaired. How can he now escape the '
conséquences of his own act, especially when he is seeking to avoid
the payment of a valid claim the justice of which he has repeatedly
recognized ? The court should not permit merely technical défenses
to prevail against a meritorious claim. Such considérations may be
entertained in aid of equity, but not to defeat it.
The intervenor is entitled to a deeree for $700 and interest from
December 5, 1881, besides costs. The commissioner'a fées amount-
ing to $18 should first be paid from the fund.
UNITED STATES ». OITÏ OF ALBXANDBU. 609
United States v. Citt of Alexandbia and another.
{Cfùrcuit Court, E. D. Virginia. October (i, 1882.)
1. Ltmitatioiî— Government;
Time does not run against the sovereign government,
2. Lâches— Agents of Qovbunment.
The government is not chargeable with lâches by reason of the procrastina-
tion of its offlcers.
3. Lapbb op TrME— Pdbijc Coupokations.
lîquity -vrill not refuse to enforce an obligation merely because of the lapgeof
time, unless évidence has been lost, or the rights of third parties hâve become
involved, or the personal relations between the parties h^ve been so much al-
tered as to change the essenlial character of the obligation. Governments and
municipal corporations are of such a permanent nature that their mutual rela-
tions are presumably unaffected by the lapse of years.
4. Specific Performance— Aptek-A-CQUibed Titlb.
A party agreeing to transfer property which he does not own at the time,
cannot refuse to perform his contract after acquiring title.
6. 8amb— Onlt Part Performance Possible.
One who, by his own fault, is unable to perform a part of his contract, can-
not upon that account resist a bill for the spécifie performance of the rest.
6. Samb— Pecdniabt Damages Kepusbd.
Where congress authorized an advance of money to a city upon the surren-
der to the government of stock which it held, and the money was advanced
but the stock was not transferred, held that, though spécifie performance of the
obligation to transfer the stock would be decreed, no pecuniary damages could
be awarded.
In Equity.
H. H. Wells, for plaintifif.
Kemper, Johnson db Stewart, for défendants.
Hughes, J. The cities of Georgetown, Washington, and Alexan-
dria united their corporate crédit and resources with the United
States, Virginia, and Maryland in the construction of the Ghesapeake
& Ohio canal. About the year 1836 they had exhaiisted themselves
in this behalf, and the canal was unfinished. They applied to con-
gress for relief. The form in which this relief should be given was
not definitely settled upon in the first instance. But it finally took
the form indicated in the " Act for the relief of the several corporate
cities of the District of Çolumbia," passed May 20, 1836. 5 St. at
Large, 32. The act provided that the three cities should convey the
légal and équitable title in their stock to the secretary of the treasury,
to be held in trust for the United States, with power in |he secretary
of the treasury "at such times, within ten years, as may be most
favorable for the sale of the said stock, to dispose thereof at public
sale, and reimburse to the United States such sums as may hâve
been paid under the provisions of this act;" and "if any surplus re-
main after such reimbursement, he shall pay over such surplus to
uaid cities." The plan was that the United States should pay cer-
tain debts of the three several cities, incurred on account of the canal,
taking in lieu of them the shares they respectively held in the canal
Company. It was stated in argument at bar that the debts thus paid
v.l9,no.9— 39
&10 . FBDEBÀIi BEPOBTBB.
bj the United States in cash amounted to about 85 cents on tbe dol-
lar of thë par value of the stock' received in exchange. While this
measure was pending before congress, the city of Alexandria brought
to the attention of that body, by an elaborately-drawn mémorial, her
embarrassment and urgent need of relief in respect to the Alexandria
canal, which was an extension of the Chesapeakô & Ohio canal from
Gr^orgetown into her own corporate limits. This mémorial was pre-
sented in January, 1836. It simply asked relief, and did not suggest
9,ny form in which it should be given. In May the act for the relief
6f the three cities on account of the Chesapeake & Ohio canal was
jiassed; and in December, 1836, Alexandria filed an additional mé-
morial, suggesting that the relief which she separately asked should
be in the form in whieh the three cities had received it in the act of
May preceding, in respect to their indebtedness for the main cauak
Alexandria's claim for relief in respect to her branch canal rested
upon the same equities and considérations of public justice and policy
on which that of the three cities had rested in respect to the main
work. She then owned 3,500 shares of the stock of the Alexandria
Canal Company, though it seems now that she had as yet completed
paying for only l,i)()Ô sh£|,res. There is nothing to show that con-
gress was informed at this time of the fact that she had not yet paid
hp her sUbscription for part of her shares in the stock bf the branch
canal, and could not deliver them.
Congress responded favorably to Alexandria's separate and addi-
tional claim to relief in respect to her separate and branch canal.
Congress voted $300,000 out of the treasury to Alexandria, which was
almost precisely 85 per cent, of the par value of her 3,500 shares.
The act by which this payment was authorized was passed on the
third of March, 1837. See section 2 of chapter 44 of the acts of
1836-37, (5 St. at Large, 190.) The act provided—
"That when the corporate authorities of the town of Alexandria shall de-
posit the stock held by thém in the Alexandria Canal Company in the hands
of the secretary of the treasury, with proper and compétent instruments and
conyeyances in law, to vest the same in the secretary of the treasury and his
successors in office, for and ou behalf of the United States, to be held in trust
upon the same terms and conditions in ail respects as the stock held in the
Chesapeake & Ohio canal by the several cities of the district were requiied
to be held in and by virtue of the act approved on the seventh day of June,
eighteen hundred and thirty-six, entitled 'Au aet for the relief of the several
corporate cities of the District of Columbia;' that the secretary of the treas-
ury be and he is hereby authorized and empowered to advance, out of any
moneys in the treasury not otherwise approprialed, to the canal corapany,
from time to time, as the progress of the work may require the same, such
sums of money, not exceedjng three hundred thousand dollars, as may be
necessary to complète the said canal to the town and harbor of Alexandria."
That act simply repeated, in respect to the branch canal, the policy
and purpose of the act of the preceding May already mentioned, re-
speeting the main work, and I cannot entertain a doubt that it was
in the contemplation of congress that ail the 3,500 shares which Al-
UNITED STATES V. OITÏ OF ALEXANDRU. 611
exandria had thus Bubscribed to the stock of the Alexandria Cianal
Company should be turned over to the seoretary of the treasury on
his payment to her of the $300,000 of cash appropriated by the act
of March 3, 1837. To contend otherwise seems to me to be con-
trary to reason and ail probability. Shortly af ter the act last men-
tioned, the authorities of Alexandria turned over to the seoretary of
the treasury, upon a payment then made by that officer of part of
the sum that had been appropriated for the city, 1,600 shares of
canal stock, which was ail that she could then deliver. The secretary
went on at différent timesto pay other installments of the appropri-
ated $300,000 until ail was paid. With this money Alexandria pre-
sumably completed the payment of her snbscriptions on her remain-
ing 2,000 shares of stock; but thèse shares were never delivered to
the secretary of the treasury, nor never called for. I regard this
omission as an act of sheer inadvertence. The stock became or had
become absolutely valueless in the market; and it never seems to
hâve occurred to the mind of any seoretary of the treasury to oall
upon Alexandria for the undelivered 2,000 shares still due. The city
afterwards subscribed for 1,500 additional shares of this stock in the
Alexandria canal, making in ail, with that delivered to the secretary
of the treasury, 6,000 shares. Ten years after the act of eongress
which haa been mentioned, she made an exchange of 2,720 pf her
shares with the state of Virginia for an équivalent amount of state
bonds at par value, and has now only 780 left at her disposai.
The bill in this case is filed to require a spécifie performance by
Alexandria of her obligation under the act of eongress of March 3^
1837. I think that nothing could well be more olear than the obli-
gation of Alexandria to comply with the prayer of the bill, by deliv-
ering to the secretary of the treasury the 2,000 additional shares of
the stock of the Alexandria Canal Company still due. It is objected
by her counsel that the lapse of time has been so great, and the lâches
of the United States so signal, that it would be inéquitable now for
Alexandria to be called upon to perform this obligation. But time
does not run against the United States, and public policy forbids
that the négligence of the officers of an immense government like
ours should be held to create lâches on the part of the government,
except, probably, as to third persons wbo are strangers to transac-
tions as to which the négligence may oecur.'
In U. S. V, Kirkpatrick, 9 Wheat. 720, the suprême court sayi
"Tho gênerai prineiple is that lâches is not imputable to the government.
The utmost vigilance would not save the public from the most serious losses
if the doctrine of lâches could be applied to its transactions. It would, in ef-
fect, work a repeal of ail its securities."
In U. S. V. Vanzandt, 11 Wheat. 190, the court say:
"The neglect in the one case and the other imputes lâches tô' the officer
whose duty it was to perform the acts which the law required; but,, in a légal
point of View, the rights of the government cannot be aflected by thèse lâches."
612 FEDEBAIi BEPOBTEB.
"A claim of the United States is not released by the lâches of the
officer to -wham the assertion of that elaim was intrusted." Dox v.
Postmaster General, 1 Pet. 325. "Statutes of limitation do not bind
the United States unless it is specially named therein." Lindsey v.
Lessee of Miller, 6 Pet. 666; C7. S. v. Hoar, 2 Mason, 311. "The
unauthorized act of the ofiQcer of the United States (in the matter of
a claim for or against it) cannot bind the United States." Filor v.
U. S. 9 Wall. 49.
If, indeed, there could be any rational doubt entertained in regard
to the reason why not more than 1,500 sharesof the canal stock were
delivered in 1837, or any reasonable pretension that such delivery
was, in fact, accepted by the United States as completing the obliga-
tion of Alexandria, and if this doubt could not be cleared up because
of the death of witnesses who were cognizant of the transaction, and
loss of évidence touching it, this court, as a court of equity, might hes-
itate to enforce the spécifie performance of a contract thus rendered
obscure by a long lapse of time. But, as already said, I do not think
there can be any reasonable doubt of the facts of the original trans-
action, or of the intention of congress or of Alexandria in entering
into it. Where an obligation is clear, equity will not refuse to enforce
it because of mère lapse of time since its origin. True, in cases where
the rights of third persons hâve become involved, equity will often
refuse to enforce a long-standing obligation to the injury or préjudice
of such persons. So, where the terms or nature of a long-standing
obligation hâve become uncertain, in conséquence of the lapse of
time, the loss of évidence, or the death of witneases, equity will some-
times refuse to enforce it in conséquence of this uncertainty; it will
not make a decree, apparently just, where there is danger, in making
it, of doing real injustice. Such are some of the considérations on
which equity will refuse to enforce an old obligation. But where the
obligation is clear, and its essential character bas not been affeeted by
the lapse of time, equity will enforce a claim of long standing as read-
ily as one of récent origin; certainly as between the immédiate par-
ties to the transaction. See the case of Etting v. Marx, i Hughes,
312, S. G. 4 Fed. Eep. 673, where the doctrine of limitations in equity
is very elaborately discussed as to suits between private individuals.
But the parties to the présent transaction are, on one side, a
government of permanent stability, and on the other, a municipal
corporation older than the government. They are not like natural
persons, whose relations and obligations are ail more or less affeeted by
mère lapse of time. The reason which iuduces equity to look with
disf avor upon old and stale claims, as between natural persons, ceases
when applied to governments and public corporations. Forty years
in the Hfe of such bodies are but as so many days or months in the
life-time of individuals. Obligations between them are just as en-
during. I must hold that, as between the United States and Alex-
andria, time bas not released the city from the obligation to delivei
UNITED STATES V. CITY OP ALEXANDBIA. 613
to the secretary of the treasury the 3,500 shares which she had in
March, 1837.
It cannot be necessary to answer at length the whoUy untenable
pretension that the corporation of Alexandria, when it delivered the
certificates for 1,500 shares, was absolved from further obligation be-
cause it did not own the remaining 2,000 shares; for it.is a familiar
doctrine that if one undertakes to grant property not yet in his pos-
session or paid for, but which be subsequently does acquire and pay
for, the title inures to his first grantee.
It is no objection to a decree being made for spécifie performance
of a part of a contract when the performance of the remainder bas been
made impossible by the act of the défendant. To permit such an ob-
jection to prevail would be to violate the maxim that no man shall
take advantage of his own wrong. See Fry, Spec. Perf. § 294, citing
Lord Eldon, who, in speaking of one who had undertaken to convey
a greater interest tban be possessed, says:
"For the purpose of this jurisdiction, the person contracting under thèse
circurastances is bound by the assertion in his contract, and if the vendee
chooses to take as much as he can hâve, he bas a right to that, * * * and
the court will not hear the objection, by the vendor, that the purchaser can-
not bave the whole."
See, also, Morss v. Elmendorf, 11 Paige, 287; Hatch v. Cobb, 4
Johns. Ch. 559; Kempshall v. Stone, 6 Johns. Ch. 193; Fry, Spec.
Perf. §§ 554, 258.
The latter is to this point, that where a hardship bas been brought
upon the défendant by himself, it shall not be allowed to fnrnish any
défense against the spécifie performance of the contract, at least when-
ever the thing he bas contracted to do is reasonably possible.
In Bennett v. Abrams, 41 Barb. 619, it is said, where spécifie per-
formance of a contract is impossible, the plaintifif may hâve approx-
imate relief in some other form which will secure him the substantial
advantage of the agreement.
The state of Virginia is not a party to this suit, and could not be
required to return any part of the 2,720 shares which she obtained
from Alexandria if she were. It is not shown that she was made
cognizant of the fact that Alexandria had not an équitable right to
deliver to her as manyof the shares of the canal company as she did
deliver. The évidence does not show that this fact was brought home
to the mind of the Virginia législature when that body passed the act
authorizing the exchange of state bonds for thèse shares, though it
does show that Alexandria, in the person of her agents, was informed
that she was violating her obhgations to the United States in solicit-
ing and making that e:^change.
As to the damages claimed by the bill against the city, from the
non-delivery of the 2,000 shares to which the United States are still
entitled, I do not think it would be équitable for this court to do more
than require thèse missing shares to be delivered. It was not intended
614 FEDERAL BEPOBTEB.
by the United States, in the act of March 3, 1887, to create a money
demand directly or indirectly against the city, and I am not disposed
to make a money decree against the city. I do not think the meas-
ure of damages in this particular case is the highest price which the
shares of the canal company hâve commanded in the market since
the delinqueçcy, as contended by counsel for plaintiiïs. What steps
should be taken in this suit to enforce the full performance of the
qbligation of the city must be hereafter determined. I will at once
make a decree requiring the city to transfer to the secretary of the
treasury the 780 shares still held by her, and to make up the remainder
of the 2,000 shares yet due.
See U. 8. v. Southern Colorado Coàl <& Town Co. 18 Fed. Rep. 273; U.S.
V. Beebee, 17 Fed. Rep, 36.
United States v. Citï of Alexandeia and another.
{Circuit Court, E. D. Virginia. February 7, 1884.)
1. PUBIilO StATUTES— CON8ÏB0CTIVB NOTICB OF PkOVISIONS.
Public statutes aflect, with constructive notice of tlieir provisions, ail tha
World, including domestic states as well as individuals.
2. Same — A.CT OF OoKGHEss— Cbktaintt — Statutb of Limitations.
But where an act of congress provided that ail the shares held in a canal
Company by a city (A.) should be delivered to the secreiary of treasury, not
naming the nutnber of shares intended, and that within 10 years the secretary
should sell the shares to satisfy a trust dcflned by the act, and the city did de-
liver 1,500 shares, ail that she held at the date of the act, though she had sub-
scribed, but had not paid, for, and did not actually hold, a greater number, and
after 10 years the city sold to the state of Virginia a large blook of shares, in-
cluding sorne of the shares it had subscribed for but did not hold when the act
of congress was passed, held, that the act was not suffloiently certain in ita
terms to convey constructive notice to Virginia of any equity the United States
might hâve in a greater number of shares than 1,500, and tliat Virginia had a
right after 10 years to purchase in good faith from A. any shares then owned
by that cit}'. Ileld, aUo, that although time does not run against the United
States, and they are not prejudiced by the lâche» of public ofiicers, yet equity
will be unwilling to enforce the doctrine of constructive notice more than 40
years after the passage of a public statute in a case where stock purchaaed bona
Jîde, claimed to be atîeoted by the notice, has been held for more than 30 years.
By an act of May 20, 1836, (5 St. at Large, 32,) congress, after au-
thorizing the secretary of treasury to assume the payment of certain
bonds, respectively, of Georgetown, Washington, and Alexandria,
which those cities had issued in aid of the canal which had been con-
structed from Georgetown to the town of Cumberland, in Maryland,
provided that before the secretary should exécute this duty "the corpo-
rate authorities of said cities should deposit in the hands of the said
secretary the stock in the Chesapeake & Ohio Canal Company, held by
them respectively; and that the secretary might, at suoh time within
tlNITED STATES ». CITY OF ALBXANDRIA.
615
ten years as should be most favorable for the sale of said stock, dis-
pose thereof at public sale, and reimburse to thé United States such
sums as might bave been paid under the provisions of this act, and
if any surplus remained after said reimbursement, he should pay oveï
said surplus to said cities in proportion to the amount of stock now
held by them respectively. " This was in référence td the stock of
the three cities in the canal between Cumberland and Georgetown.
In its river and harbor bill, passedon the third of Maïch, 1837, con-
gress inserted a section which enacted, in respect to the canal, extend-
ing the other from Georgetown tô Alexandria, (5 St. at Large, 190,)—
"That wheii thecorporate authorities of the town pf Alexandria should dé-
posât the stock held by them in the Alexandria Canal Company in the hands
of thesecretaryof treasury, with properand compétent instruments and con-
veyances in law to vest the same in the secretary for and on behalf of the
United States,— to be held in trust upon the same terms and conditions in ail
respects as the stocks held in the Chesapeake & Ohio canal by the several
cities of this district were required to be held in and. by virtue of the act of
May 20, 1836, (above cited,) — then thè secretary should be and he is hereby
empowered and authorized to advance to the Alexandria Canal Company, from
time to time, as the progress of the work might :require the same, such sums
of money, not exceeding $300,000, as might be necessary to complète the ca-
nal to the town pf Alexandria."
This case requires only the latter act to be considered. At the
time of its passage Alexandria hôld only 1,500 shares of the stock of
the Alexandria Canal Company, and, npon a strict reading of the act,
a deposit by the city of that number of shares was such a compliance
with its literal terms as to entitlé the canal company to receive the
■whole appropriation of $300,000. Alexandria had indeed at that
time subscribed for a total of 3,500 shares, but she had paid for but
1,500 of them, and actually "held" only the latter number. Doubt-
less congress had contemplated the deposit of 3,500 shares, but the
act did not expressly require the deposit of any other shares than
those which Alexandria "held" at the passage of the act. Sometime
afterwards that city subscribed for an additional 1,500 shares of the
canal stock, thereby running up her total subscription to 5,000 shares.
Soon after the passage of the act of March 3, 1837, Alexandria
deposited with the secretary of treasury the 1,500 shares of canal
stock -which she then held; whereupon an installment of the $300,-
000 was paid to the canal company; and afterwards, from time
to time, the secretary of treasury paid over to the canal company
the residue of the appropriation, without requiring of the city of
Alexandria any further deposit of stock. Probably this was done in
conformity with the literal terms of the act which failed to define the
number of shares contemplated, and instead of requiring payments
to be made pari passu with deliveries of stock by the city, required
payments to be made to the canal company "as the progress of the
work should require the same." AU this transpired in the year 1837.
The secretary did not call upon Alexandria to deposit, nor did the
616 FEDEBAL REPORTEE.
city deposit, any other shares of the canal stock than the original
1,500 shares. Nor did the secretary, during the period of the ensu-
ing 10 yeara, sell the stock which he had of the «Alexandria Canal
Company, to satisfy the trust for which he held it, as defined in the
act first above referred to, of May 20, 1836, defining the purposes for
which the stock should be sold. As before said, Alexandria, after
March 3, 1837, acquired 3,500 shares of the canal stock, in addition
to the 1,500 shares which she iiad deposited with the secretary of
treasury. And no call having been made upon her within the
period of 10 years within which the secretary was empowered to sell
the stock in satisfaction of her indebtedness to the United States, she,
in 1847, under au act of the gênerai assembly of Virginia, (acts of
assembly for 1846-47, p. 93,) passed March 1, 1847, exchanged 2,720
of the 3,500 shares of canal stock then held by her, with the state of
Virginia, for bonds of the state to the amoimt of $272,000, the canal
stock going into the custody and possession of the board of public
Works of Virginia, where it now is.
In 1881 a bill was exhibited by the United States in this court,
against the city of Alexandria and the Alexandria Canal Company,
demanding, among other things, a spécifie performance of what wàs
alleged to hâve been the contract between Alexandria and the United
States embodied in the act of March 8, 1837, which bas been quoted
above. The présent proceeding is part of that suit. On ail the
proofs taken in the progress of that suit it was held, on final hear-
ing, that congress in the act mentioned had contemplated the sur-
render of 3,500 shares of canal stock by Alexandria to the secretary
of treasury, and it was decreed October 6, 1882, that the city was
bound to deliver that number of shares. But it had been devel-
oped in that suit that Alexandria then held but T80 shares, having
assigned and transferred the rest — 2,720 shares — to the state of Vir-
ginia for valuable considération. The 1,500 shares deposited in 1837
with the secretary of treasury, and thèse 780 shares delivered under
the said decree of October, 1882, made up only 2,280 shares, leaving
still due from Alexandria to the United States 1,220 shares. Her
total subscription of 5,000 shares had gone, — first 1,500 shares, and
afterwards 780, under decree, to the secretary of treasury, and 2,720
to the state of Virginia; making in ail, 5,000 shares, and leaving
none in her possession with which to supply the additional claim of
the United States for 1,220 shares. Since the decree for spécifie
performance entered October 6, 1882, the United States bas filed its
pétition in this cause against the board of public works of Virginia,
asking that that corporation, which has possession of the 2,720 shares
of canal stock which it received from Alexandria in 1847, should be
made party défendant in this suit, and required by this court to de-
liver 1,220 shares of the same to the secretary of treasury of the
United States ; the pétition maintaining that the act of congress of
March 3, 1837, affected the state of Virginia with notice of the trust
UNITED STATES V. CITY OF ALEXANDBIA. 617
which bound that stock as defined in the act of May 20, 1836, and
that the state, in equity and good conscience, should surrender the
same to the secretary of treasury.
Edmund Waddill, U. S. Atty., and H. H. Wells, for the United
States,
Frank S. Blair, Atty. Gen,, for Board of Public Works.
Hughes, J. I am now to pass upon the question of constnictive no-
tice as aiïecting the state of Virginia. I refer to my opinion delivered
on the original hearing of this cause on October, 6, 1882, filed in the
papers of the cause, and reported in 4 Hughes, 545; S. C. ante,
609, as showing the grounds on which I held that Alexandria was
bound to deliver 3,600 shares of the canal stock in ail, 2,000 in ad-
dition to those formerly deposited, to the United States. It will be
seen that one of the questions at issue in that litigation was whether
Alexandria, by depositing ail the stock which she owned on the third
of March, 1837, and at the time of the deposit, had not fully com-
plied with the requirements of the statute? This was a pretension
strongly supported by the fact that the secretary of treasury, by not
having demanded a deposit of more than 1,500 shares, hadseemed to
adopt and act upon that view of the subject. But I held, on ail the
proofs, that the act had contemplated the deposit of 3,500 shares,
and therefore that Alexandria was bound to make further deposit of
the remaining 2,000 shares due. I also declared in that case, which
déclaration, however, was then but a dictum, that Yirginia could not
be required, even if she were a party to the suit, to return any part
of the 2,720 shares which she had purchased from Alexandria in
1847. The ground of this déclaration was stated to be that Virginia
was not made cognizant of the fact of Alexandria not having an équi-
table right to dispose of as many as 2,720 shares of the canal stock
as she did dispose of ; that fact not having been brought home to the
mind of the législature of Virginia when it passed the act authorizing
the exchange of state bonds for thèse shares, which was made.
Now that Virginia, in the corporate person of her board of public
Works, bas been made a party to this suit, and that point is especially
under litigation, and bas been argued, I find no cause to change that
opinion. Conceding, for the sake of argument, that the act of con-
gress of March S, 1837, being part of a public act, did affect Vii-ginia
with constructive notice that the shares then held by Alexandria in
the canal company, when delivered to the secretary of treasury,
would be liable to the trust defined in the préviens act of May 20,
1836; yet it is certain that such notice only embraced the express
contents of the act, and such other facts as, upon reasonable inquiry,
were suggested or implied by the act. As an instrument of construct-
ive notification, interfering with the freedom of commercial dealing,
the act was to be strictly construed: Third persons could not be ex-
pected to know ail its history, — ail the considérations which inspired
its passage, — and its relations to ail the bonds of Alexandria Canal
(518 fEDBBAL EEPOSTEB.
Company, whicli at any time, however remote in the future, Alexan-
dria might own ; nor were third persons bound to look through a pe-
riod of 44 subséquent years, and to anticipate the litigation instituted
in this court in 1881, to détermine how many shares of canal stock
congress had intended that Alexandria should deposit with the secre-
tary of treasury. The act gave notice that the stock then held by
Alexandria should be deposited ; inquiry -would hâve developed that
the number of shares then held was 1,500, and that thèse were de-
posited. The act gave notice that within 10 years from ita date the
secretary should sell ail the stock which the act had required to be
deposited ; inquiry would hâve disclosed that after the expiration of
the 10 years Alexandria held 3,500 shares, more or lésa of it possibly
repurchased at the secretary's sale. The reasonable inference was
that stock held after March 3, 1847, was not affected by the act of 10
years previous, nor by the trust which it defined and imposed. In
short, it is plain to me that the act of March 3, 1837, was not such in
terms, nor the prooeedings of the secretary such, under it, as to eon-
vey notice to Virginia that any part o( the 2,720 shares which she pur-
chased in 1847 from Alexandria was afiEected by a trust which could in-
validate her title. Indeed, as before suggested, that question was not
actually settled, even as against Alexandria herself, until the decree in
this cause, before mentioned as having been entered on October 6,
1882. Such being thestate of things as to constructive notice, there
is no proof that the législature of Virginia, or her board of public
works, had actual notice of the status of the stock which she purchased
from Alexandria, in its relation to the oongressional act of March 3,
1837. I believe it is not pretended by CQunsel that there was actual
notice in any degree or form. Virginia is therefore an innocent and
bonafide holder, for full considération paid, of the whdle 2,720 shares
of canal stock now held by her board of public works. She has
équitable title to it, and she has, besides, the légal title in and lawful
possession of it.
Besides the foregoing considération, it may be added that the de-
posit of stock provided for in the congressional act of March 3, 1837,
was an executory coi^tract. The trust established upon the stock
was not to attach iiiuil it had been actually deposited, "with proper
and compétent instruments and conveyances in law to vest the same
i,n the secretary of the treasury." Until so deposited and legally
transferred, Alexandria, though bound in equity to deliver a certain
portion of it to the United States, was in law àt liberty to transfer
and sell it, and niake good title to it to any 6ona /îcie purchaser for
valuable considération who was not cognizant of her obligations re-
specting it. As thaçasé stands, the United States has an equity
to bave 1,220- 8har^a of'the canal stock once, owned by Alexan-
dria transferred to the secretary of treasury, unless they hâve lost
their equity by sleeping for more, than 40 years upon their rights.
Km the other h and, Virginia has an equity to hâve the whole 2,720
BILLARD V. PATON. 619
shares of the stock which she pùrcHased in good faith and without
adverse notice, from Alexandria, and has also the légal title derived
by légal transfer, and by quiet possession of more tban 30 years.
Her right therefore must prevail.
Entertaining thèse views on the mérita of the case, it was useless
for me to go intd the question of jurisdiction raised at bar, or into
the question how far governments and states are bound by the lâches
of their public offices, or by the lapse of time.
The pétition of the United States must be dismissed.
DiLLAED and another v. Paton and others.
(Uircuit Court, W. D. Tennessee. March 15, 1884.)
L CoNTRACTS— SALE— Exchange Absocutions— Rdles and ReguIiATions — Ef-
FBCT OF NoN-ObBERVANCB.
Whei-e merchants form voluntary associations " to establish just and équita-
ble principles, uniform usages, rules, and régulations, wliicli shall govern ail
transactions " between the members, parties dealing with each otlier, who are
memiiers, malse the rules and régulations a part of their contract, and the courts
will enforce them as such; but this only when they are observed by the mem^
bers involved in the controversy; for the habituai non-observance by them in
their dealings with each other will abrogate the particular rule violated, and
relegate the contract to the ordinary rules of law goveralng it.
2. Bame— Cotton Exchange of Memphis— Rule 9 — Risk of Losb by Fiée.
Where two members of the Cotton Exchange of Memphis, in their dealings
witli each other, for a séries of years paid no attention on eitherside to a rule of
the exchange which provided that delivery of cotton sbould not be considered
final until ihe cotton was paid for, the contract involved in this suit should not
be governed by the rule of the exchange, but by the gênerai law. Where, there-
fore, a sale of 270 baies was made by sample, an order given by the seller to the
warehouseman to deliver to the buyer, the warehouseman and the buyer weighed
the cotton, the buyei- sampled it, approved 268 baies, and rejected two, put his
"class" and "shipping" marks upon it, and gave written directions to his
drayraan to remove it from the ahed, }i,dd, that the title passed to the buyer
when thèse things were done, and a loss by flre before removal from the ware-
house was his loss, although the cotton had not, at the time of the flre, been
actually paid for.
3. Same — Construction of the RtrLE— WArvER.
Where the rule of the Cotton Exchange of Memphis provided "ail cotton
shall be received within five working days from date of sale. The weighing
and examining of cotton shall constitute a confirmation of sale, but delivery
ghall not be considered final until paid for, — the factor's policy of Insurance to
cover until delivered and paid for ; payment being considerecl final act of de-
livery," — it seems that a transaction under this rule is not an executory agree-
ment to sell when payment is made, but that it is mère stipulation for the se-
curity of the seller, which enables him at his option to refuse to part with the
posession until payment is made. But, whatever be the proper construction of
the rule, where parties by an habituai course of dealing with each other had
wholly disregarded it on" both sides, and the seller in the particular transac-
tion, as in ail others, delivered unconditionally, .and without restraint as to
possession and use, and manifested no concern aboutsecuring payment through
the rule, lidd, that this (imounts to waiver by the seller of a stipulation solely
for his beneflt, and the risk of loss by flre passed with the title to the buyer on
actual delivery to him. This waiver by the seller need not be in express terms,
but may be fairly inferred from his Conduct and acts.
620 fedebâl bepobtëb.
pindino op facts.
This case, by stipulation of the parties under the statute, was sub-
mitted to the court without a jury. The court found the foUowing
to be the malerial facts :
I. The plaintifiEs and défendants are members of the Memphis Cotton Ex-
change, au incorporated association, the purposes of which are thus described
by its constitution;
"article n. — PUEPOSBS.
"Section 1. The purposes of this association shall be to provide and main-
tain suitable rooms for a cotton exchange in the city of Memphis; to adjust
controversies between members; to establish just and équitable principles,
uniform usages, rules, and régulations, and standards for classifications, which
shall govern ail transactions connected with the cotton trade; to acquire, pré-
serve, and disseminate information connected therewith; to decrease the
risks incident thereto; and, generally, to promote the interests of the trade,
and increaae the facilities and the amount of the cotton business in the city
of Memphis."
II. Among other things, not necessary to mention, the constitution also
contains the following;
"article VIII. — BUTIES OF MEMBEES.
"Section 1. Every member, upon admission, pledges himself to abide by
the constitution, and also by ail by-laws, rules, and régulations of the ex-
change. "
III. The rules and régulations for the sale and transfer of cotton prescribed
by the association are as follows:
"1. AU resampling, or examination by boring, shall be performed after
cotton shall hâve been wéighed.
"2. AU cotton must be examined and received by the purchaser before re-
moval from its place of storage.
"3. The seller of cotton is entitled to his samples, but, when required by the
buyer, shall allow him to take them to his office for the purpose of compari-
son, and when that is done shaU return them, and a failure to do so will for-
feit his right in the future to remove them from the office of the seller.
"4. Three hundred pounds shall constitute the minimum weight of a mer-
chantable baie of cotton, and the buyer shall hâve the right to reject ail baies
below that weight; but if received an allowance of four dollars per baie shall
be made to the buyer.
"5. Six ties only shall be permitted on each baie, unless an aUowance is
made of two pounds for every tie above that number.
"6. AU seedy, mixed, fraudulently packed, and damaged cotton may be re-
jected, and must be done at its relative value in the list purchased; but the
grade of the cotton by marks shall be given to the buyer at the time of sale,
or before the day of delivery, if required by him. and cotton sold by samples
must be delivered accordingly, unless rejected for causes above stated.
" 7. The practice of examination by boring cotton, which prevails in tliis
market, before passing of same, is understood to be the rule astothe mannei
of receiving, and relieves the seller from any liability for réclamation on
mixed, fraudulently packed, or damaged cotton.
"8. AU cotton shall be understood to be In good order; but if not, it shall
be repaired within twenty-four hours from the time of delivery, and if nat
done within that time the necessary repairs may be made by tlie buye»- at
DILLABD V. PATON. 621
the expense of the seller. No elaims for repaira shall be allowed after the
removal of cotton from its place of storage.
"9. Ali cotton shall be received within flve working days from date of sale.
The weighing and exaraining of cotton shall constitute a confirmation of
sale, but delivery shall not be considered final until paid for. The factor's
policy of insurance to cover until delivered and paid for; payment being con-
sidered final act of delivery.
"10. No order for the delivery of cotton is transférable without the knowl-
edge and consent of the seller. "
IV. When rule 9 of the cotton exchange was under considération by the
association it did not contain the last clause, viz., "payment being considered the
final act of delivery." But a resolution was adopted appointing a committee
to eonfer with the board of under writers "to gain information regarding
the insurance of cotton under process of delivery," and upon such confér-
ence a report was made that "after a lengthy discussion as to the indorse-
mentand acceptance of rule 9 by the board of uuderwriters, " a commit-
tee was appointed by that body to meet the directory of the exchange, "in
order that rule 9 may be so amended, if thought proper, as to harmonize the
différent views." Whereupon the matter was discussed between the direct-
ors and the uuderwriters' committee, and resulted in adding theabove clause
to the rule, its acceptance by the uuderwriters, and at the same time. the
adoption by them of the folio wing resolution: "Resolved, that our policies
on cotton in sheds as now written provide ail the security to the assured
which they require, therefore additional législation on the subject is superflu-
ous. "
V. The plaintiffs are cotton factors, and the défendants cotton brokers or
buyers, doing business in the city of Meraphis; and at the time of the trans-
action in controversy in this suit were members of the cotton exchange, while
the above provisions of the constitution and by-laws were in force.
VI. The plaintiffs and défendants bargained with each other for the sale
and purchase of 270 baies of cotton, selected by sample, and identifled by cer-
tain marks upon the baies and samples. The cotton was at the time, with
other cotton of the plaintiffs', stored in a public warehouse in ijemphis.
The date of this bargaining was on the sevénteenth and eighteenth of Octo-
ber, 1882.
Vil. The plaintifEs, as soon as the bargain was made, sent to the ware-
houseman, according to the usual course of business, written orders for Its de-
livery to the défendants, specifying the lots and marks corresponding to those
upon the samples, of which orders the following is a spécimen: "Memphis,
ÏENN., Oct. 17, 1882. Merehants' Cotton Compress & Storage Co. will please
deliver to A. A. Paton & Co. nineteen baies of cotton, of the foUowing marks
and numbers. Billard & Coffin. "
VIII. Upon the receipt of thèse orders the warèhousemen turnçd out the
lots ot cotton specified, and aligned them in the yardof thç shed forconven-
ience of examination, weighing, and marking. On Saturday, October 21,
1882, the agents of the défendants appeared at the shed, and the weigher of
the warehouse, jointly with the weigher of the défendants, weighed this cot-
ton, each taking down the weights and agreeing as to the weight of each
baie; whereupon the borers of the défendants examined each haie by boring
with the auger, and the "classer" of défendants sampled and classed it, two .
of the baies being rejected and discarded from the lot. Thèse agents of the
défendants then marked the cotton. with the "class" and "shipplng" marks
of the défendants, and, according to the usual course of business, placed upon
a hook, kept for the purpose outside the warehouse oflace, a written direction
to défendants' drayman to remove the cotton to the place.designated therein.
It was the habit of défendants' drayman to corne to the shed whenever, in th«
622 FBDEBAL REPOBTER.
•course of the business, he could, and to tafce this order from the hook and re-
move the cotton. The plaintiffs and the warehousernen had done everything
■required of either in the usual course of business to place the cotton in pos-
session of the défendants, and nothing remained to be dona by either to com-
plète the transaction, so far as the right of removal of the cotton by the de-
fendants was involved. About noon this part of the business was completed,
and the défendants' agents left the shed, taking with them, as usual, the
borings or loose cotton. ïhey reported their weights, etc., to the défendants'
office, but at what précise time does not appear by the proof , though it does
appear that, in the usual course of business, this was done the same day, or
that night, or next morning.
IX. The warehouseman, aceording to hîs custom, promptly reported his
weights and the rejections to the plaintiff's ofifice, and thereupon, during the
afternoon of Saturday, October 21, 1882, they sent their Mil or account of the
cotton to défendants for $14,945.56, the price agreed upon for the 268 baies,
■which was not paid. The messenger was instructed to deliver the bill and
bring back the check, if paid, but not to insist on payraent. The bill was
hànded to some one in défendants' ofilce, and left theré by the messenger. It
was the usual custom of défendants to pay for cotton purehased by them at
about 2 o'clock p. m., on the day foUowing the examination and weighing,
after comparison of the factor's bill as rendered with their own report of the
weights and rejections. It was also their custom to hâve cotton hauled to
the compress, and, on receipt of the dray tickets showing its delivery there,
■to take the tickets to their transportation agent, reçoive bills of lading, at-
tach them to drafts on their correspondents at Liverpool, or elsewhere, ne-
gotiate them in their bank at Memphis, and pay factors by checks on that
taank. It was also their custom to remove cotton promptly after examina-
tion and weighing, but pressure of business, bad weather, and like circum-
stances, sometimes delayed removals, so that there was no flxed business cus-
tom in that matter, except to remove as speedily as possible in ail cases.
X. The défendants were and are entirely sol vent, and paid promptly for
their purchases, never asking indulgence of plaintiffs.
XI. The plaintiffs never insisted that défendants should pay for their pur-
chases of cotton betore its removal from the warehouse ûr bef ore they took pos-
session, and it was their custom to présent their bills to défendants as soon as
they received reports of weights, and sometimes, when their bank account
waâ hot easy, to ask payment on account bef ore the bills were hiade out, but
not to press for payment on the same day Of receiving reports of acceptance
by défendants.
XII. The défendants, in a very large proportion of their dealings with the
plaintifîs, which dealings covered many years prior and subséquent to the
organization of the Cotton Exchange, removed the cotton purehased before
paying for it. In the same season of this transaction there were given in
évidence 17 other transactions between them of like character, and in 13 of
them the cotton was removed before payment; in one instance how this fact
was does uot appear, and in two of them the cotton was removed and paid
for the same day, but which preceded the other, does not appear; and in the
remaining transaction the largest part of the lot was removed and paid for
the same day, but whether removal or payment flrst took place does not ap-
pear, while a few baies of the lot were paid for before removal. Or, to state
thèse f acts somewhat diflerently, there were covered by thèse 17 transactions
2,294 baies of cotton, of which 1,720 were removed by the défendants before
payment, 531 were removed and paid for on the same day, but whether pay-
ment or removal came flrst does not appear; as to 30 baies no showing what-
ever is made by the proof, and 13 baies were paid for before removal.
Xin. About 7 o'clock Saturday evening, October 21, 1882, the cotton in
the warehouse caught ûre, including the 268 baies involved in this contro-
CILLABD V: PATON. 623
versy and Was alïaost èntirel^ con&ifmed, onebale oillyôf Vd\s îot beîng saved
withoTit damage. There were besides this lot oî 268 baies in dispute between
the parties, 618 baies belonging to tlje plaintiffs burned in the flre, this dis-
puted lot being in the yard of the ghed in thâ same place it was left at the
time of the weighing, examination, and inarking àbove mentionéd.
Xiy. One of the défendants was at the flre for a short time and knew that
their agents had weighed and exaniined this cotton on that day at this shed,
but supposed it was in the oompress building, whieh was separated from the
shed by a wall between the two; and on the following morning plaintiffs
sent a message to défendants' manager that the cotton could be partiallly
saved, and invoked the assistance of défendants to that end, but he declined
to hâve anything to do with jt; and denied the défendants had any interest in
the cotton. The plaintiffs did ail that couJd be done towards saving this 268
baies with theirs, and, it having become indistinguishable froià the other cot-
ton by the destruction of the marks, the whole was sold in a mass as dam -
aged cotton, and plaintiffs did then and now ofler to give défendants crédit
for their shareof the proceeds, amountingto $1,110.74, about which estimate
there is no dispute; nor is there any dispute about the woights and price of
the entire lot of 139,388 pounds for $14,945.56.
XV. The plaintiffs hâve frequently demanded payment of the défendants,
which bas been refused,
CONCLUSIONS OF LAW.
The court found the following conclusions of law, arising upon the
foregoing faets :
1. The delivery of the cotton was complète and snfflcient to pass the tîtle
to défendants before the flre, and the riskof los8 was theirs.
2. The plaintiffs are entitied to judgment against the défendants for the
8um of $13,834.82, and interest thereon at 6 per cent, per annum from the
twenty-first day of October, 1882, to this daté, and the amount of the judg-
ment sbould therefore be $14,996.95, and costs.
Wright, Folkes de Wright and Metcalf é Wàlker, for plaintiffs.
Gantt é Patterson and Di/er, Lee dt Ellis, for défendants.
Hammond, J, Outside of the ruies of the cotton exchange there
eould be no possible doubt about this case. The delivery was as com-
plète as it was possible to be, and under the gênerai law the title
passed to the défendants from the moment they examiûed, apprôved,
and marked the cotton, and the risk of loss by fire Wàs theirs.
Léonard v. Davis, 1 Black, 476, 483; Hatch v. OU Co. 100 U. S. 124,
128; Tome v. Dubois, 6 Wall. 548, 554; Williams y. Adamà, 3 Sneedj
358; Bush v. Barfield, 1 Cold. 93; Porter v. Coward, Meigs, 25; 1
Amer. Law Eev. 413, and authorities oited. The défendants éoticede
this; but they say that under thèse cotton'-exehange raies thé "coiï-
tract of the parties waa "uot a sale, but a mère executory agreettient
to sell," by the terms of which contract the' sale was not coïûpletéd
by the agreementas to quantity,quality, and price, or by that agte'ë-
ment accompanied by delivery, but only by the actua.1 patyment of
the price, uritil which payment the title remained with thë plaintiffs,
and the risk of loss by firewaë theirs. And itls as frankly concedèd
by thèse plaintiffs that if this case falls withiii the raies of the cotton
624- pedebaIj bepobter.
exchange, and this be the proper and légal construction of the con-
tract, the défendants are not liable.
The first inquiry then is, does this contract corne within rule 9 of
the exchange? ît cannot be denied that parties may contract as
they please, no matter how irijudiciously, in the light of subséquent
events, the contract may appear to hâve been made, or how absurd
it may seem in the relation of the parties to it. Nor can it be de-
nied that merchants may voluntarily associate together, and prescribe
for themselves régulations to establish, define, and control the usages
or customs that shall prevail in their dealings with each other. Thèse
are useful institutions, and the courts recognize their value and
enforce their raies whenever parties deal under them, in which case
the régulations become, undoubtedly, a part of the contract. Thorne
V. Prentiss, 83 111. 99; Goddard v. Merchants' Exchange, 9 Mo. App.
290. But they have not, any more than other customs and usages, the
force and effect of positive statutes nor of the rules of the common
law, and the courts do not particularly favor them. The Reeside, 2
Sumn. 568; The Illinois, 2 Flippin, 422. Parties are not bound to
contract under them if they choose to disregard them, and they may,
-and often do, observe part and discard part, as the plaintiffs and
défendants hère have evidently done. In ail the dealings between
thèse parties during that season, exclusive of this, amounting to more
than 2,000 baies, only 13 were aetually paid for before they were in
fact delivered to défendants and by them removed, so far as we can
certainly see how that fact was, while more that 1,700 baies were
permitted by the plaintiffs to pass into the hands of défendants with-
out payment. And yet, we are asked, as to thèse 268 baies, to re-
verse, on the strength of this rule, such a course of dealing, and ad-
hère to its literalism in order to throw this loss on the plaintiffs. Take
the rule for ail it is worth and it amounts only to this : The plain-
tiflfs and défendants have voluntarily agreed to be bound by it, and,
by the same volition, have in ail their dealings hitherto paid no at-
tention to it. They have thus established, for themselves and as be-
tween each other, a différent and spécial custom to which this rule
has had no application, and in direct contravention of it; and this
they can always do. Thorne v. Prentiss, supra. Nor is it necessary
to expressly stipulate for such exclusion of the opération of the rules,
usage, or custom.
"And not only," says Mr. Parsons, "isa custom inadmissible which
the parties have expressly excluded, but it is equally so if the parties
have excluded it by a necessary implication, as by providing that the
thing shall be done in a différent way. For a custom can no more
be set up against the clear intention of the parties than against their
express agreement." 2 Pars. Cont. 59; Id. (6thEd.) 546, which was
approved in Ins. Cos. v. Wright, 1 Wall. 456, 471, The suprême
court says the usage or custom, when the contract is made with réf-
érence to it, becomes a part of the contract, and may not improperly
SILLABD V. PATON. 625
be eonsidered the law of the contract. Renner v. Bank of Columbia,
9 Wheat. 581, 588. And the actual custom or usage of the parties
in dealing with eaeh other is as much a part of the contract under
this rule as a gênerai custom prevailing in the trade. Bliven v. New
England Screw Co. 23 How. 420, 431. "A gênerai usage may be
proved in proper cases to remove ambiguities and uncertainties in a
contract, or to annex incidents, but it cannot destroy, contradict, or
modify what is otherwise manifest. Where the intent and meaning
of the parties are olear, évidence of a usage to the eontrary is irrele-
vant and unavailing." Nat. Bank v. Burkhardt, 100 U. S. 686, 692.
Hère the intention of the parties to deal with each other, without réf-
érence to this custom or rule established for them by the cotton ex-
change, is manifested in the clearest way by their habituai and uni-
form dealings with each other for a long séries of years prior and
subséquent to the organization of the exchange. Neither party bas
thought it necessary to be govemed by it, and like many other rules,
usages, and cusfoms it bas become, by their voluntary disregard of
it, a dead letter. And the explanation of this is found in the faet
that the plaintiffs, for whose protection it was evidently intended, did
not deem it necessary to enforce it against the défendants, who are so
amply solvent that it is their boast in the proof that they never
asked indulgence.
If it be conceded that the défendants had an interest in this
rule, by reason of the provisions in référence to insurance, the prin-
ciple is not changed. It would be, then, a stipulation collatéral to
the contract of sale, and wholly so. Whether the plaintiffs or défend-
ants should, under this rule, hâve insured the cotton is immaterial
and unimportant to the issues in this case. Its insurance or non-
insurance by either could not affect the title, or change the risk of loss
by lire whieh always follows the title in the absence of any agreement
to the eontrary. Either or both might hâve insured their respect-
ive interests in the cotton; and whether one or the other did insure,
or omitted to insure, would only tend to show, if they did not intend
to assume their own risk, that in their opinion they had an interest,
or did not bave an interest, as the case might be. But such an opin-
ion by either would not bind the other as to which of them the cotton
belonged, in a controversy about the title, as this is. The title must
dépend on the facts about the contract of sale, and wholly on them.
Nor, if we treat it as a question of évidence, does the existence of any
supposed interest of the défendants in rule 9 change the resnlt. It
is perfectly plain to my mind, in view of the history of this rule in
its relation to the underwriters, as shown by the proof, that this last
clause was added by the underwriters to make more clear the require-
ment that the factor's policy should terminate with payment for the
cotton; and' it may be a proper construction of the rule, as between
a factor and his underwriters, if it be true that the policy be written
v.l9,no.9— 40
626 FEDERAL BEPOETEB.
by this rule, that his polioy shall cover bis interest in ihe cotton until
it is paid for, no matter how long payment may be delayed, or where
the cotton may be, -whether in the shed or at Liverpool, or en route
to that or some other destination. Bat what interest does this give
the buyer in that question, or how can it aiïect his obligation to pay ?
Not in the least, it seems to me. Suppose the factor bas no Insur-
ance, — and he need bave none, — of what concern is that to the buyer,
and how eau it affect his obligation to pay, after he has taken the
cotton into his possession and, it may be, consumed it in the mills?
Insured or uninsured, as the factor may be, the coutract of sale be-
tween him and the buyer is independent of the fact, and must stand
upon its own bottom, and be determined on its own facts. This rule
is clearly not a stipulation by the factor to keep the cotton insured
for the huyer's benefit ; but if it were, the remedy would be a suit by
the buyer against the factor for a breach of that stipulation, if it had
not been complied with, and not to withhold the purchase money on
the theory that there had been no sale. He might set oflf his claim
for damages in a suit for the priée, but this case présents no feature
of that kind. The provision in this rule about Insurance, then, if not
one whoUy relating to the factor and his underwriter, with whom the
buyer has no concern, as it manifestly is, can only be a collatéral
contract between the factor and the buyer, and in no sensé does it
afford any solution to the question we hâve in hand. Ail évidence
whether either plaintiffs or défendants were insured as to.tbis cotton
was therefore properly excluded as irrelevant and immaterial.
Looking, then, as we must, beyond and outside of ail questions of
Insurance or supposed Insurance, and we are brought backto the fact
that, in ail their dealings with each other, notwithstanding the pledge
contained in article 8 of the constitution of the cotton exchange, the
plaintifs and défendants bave, in violation of their constitutional
pledges, dealt with each other without regard to the stipulation of
rule 9, that "delivery shall not be considered final until paid for;"
that is, until the cotton is paid for. The plaintiffs hâve never refused
delivery or retained the cotton until paid for, but hâve almost always
delivered before payment, while the défendants hâve never been care-
ful to pay before taking possession of and removingthe cotton, nor
at ail scrupxalous in regard to it. Perhaps, in the usual order of
business, they would prefer to get the cotton, put it under bills of lad-
ing, assign them and the cotton to their bank in negotiation of bills
of exchange with which to supply the funds, and thereby make each
shipment or purchase of cotton pay for itself. This is not according
to rule 9, for wHen they hâve put their bills in bank they hâve not
only had "delivery," but hâve likewise "delivered" the cotton to an-
other, There is nothing very sacred about the constitutional pledge
or rule 9 when the parties mutually agrée to the violation, and they
need not do this by express agreement, as I hâve already shown, On
this subject the suprême court of Illinois says : . ._
.DILLARD U. PATON. 627
"We do not entartain a doubt but that ail contracts of sales within the
contemplation o£ thèse rules must be construed as 1£ therules were expressly
made a part of the contract; but there is nothing to which our attention has
been directed, in the charter of the board of traide, and certainly nothing in
the gênerai law which prohibits members of that board from eontracting « on
'change,' or elsewhere, so as to bind themselves to obligations beyond and
independentLy of thèse rules. The only difflculty that pan arise in this re-
spect must be in determining whether the parties intended their contract
should be construed with référence to the rules of the board of trade, or that
obligations were assumed outside of those rules." Thorne v. Prentiss, 83
111.99,100.
We may add that the presumption of the law is that merchants
deal with each other under the wise provisions and protection of the
gênerai law that governs ail men in their dealings, unless the contrary
clearly appears ; and if they expect the courts to observe their rules
and enforce thena they must themselves observe them. Otherwise,
they are neither a custom or usage to control the contract.
This view of the case disposes of it, and, strictiy, we need take no
further notice of rule 9, but might leave it until its perplexities appear
in some dispute between a factor and an insolvent buyer or his at-
taching creditors, or between a dishonest factor and conflicting buy-
ers, or between some factor and his Insurance company, — ail of which
situations hâve been suggested in aid of its interprétation. But the
learned argument of the défendants' counsel in favor of their conten-
tion that this was an executory agreement to sell, and not a sale, un-
der rule 9, should receive from the court that attention it deserves,
particularly since this may not be a final disposition of, the case, and
another court may, possibly, think it necessary to construe this rule
as a part of the contract. But I must be permitted to say that the
real contention of the défendants is that their risk on cotton pur-
chased by them does not attach until they actually remove it from
the warehouse ; but there being no such rule among thèse régulations,
they hâve seized on this contrivance of an executory agreement to
sell in order to effectuate the same resuit, Yet it needs only a little
analysis to show that this construction of rule 9 goes further than
this and leads to some very absurd conséquences, so far, at least, as
it concerns the factor — so very absurd that the wonder is sane men
should ever hâve adopted a rule to bo so construed.
If the title does not pass to place the risk of loss by fire on the buyer
until the buyer pays for the cotton, whydraw the Une at the cotton-
shed? When it reaches the compress, if uot yet paid for, the risk of
loss by fire is still with the factor. So it is, if ûot paid for, on the rail
or river, at asea-port, on the océan, in Liverpool, at thé mills, in the
store wheré the cotton goods are on display, and when they hâve been
sold to consumers. Until paid for there is no sale of the cotton, say
défendants, and by withholding payment we need not insure at ail,
but leave the risk with the factor or his Insurance company under his
628 FEDEEAL HEPOBTEa.
ninth-ruîe policy; and if burned at aea or elsewhere, not having paid
him, he cannot make us pay, and must lose the cotton.
Again, why draw any Une at a loss by fire, or at any loss at ail ? The
défense is just as effective were the cotton still in existence. Paton
& Co. say to Dillard & Coffin, when sued for the price of the cotton, as
they are hère sued : "We hâve not yet paid you, and until it suits our
pleasure to pay no title passes, and there has been no sale — only an ex-
ecutory agreement to sell ; wherefore, your suit must f ail and be dis-
missed." The resuit is they keep the cotton andnever pay for it, for
this is as good au answer to every suit for the price untU payment
has been made infact, (when there is no longer any need of a suit at
ail,) as it is hère. This is little short of the case put as an illustra-
tion by Mr. Justice Gbier, where a man sued by bis taUor for the price
of a suit of clothes cornes into court with the clothea on bis back and
sets up that the goods were smuggled by the tailor. Randon v. Tohy,
11 How. 480, 521. Indeed, the défense is not so good, for hère there is
no fault of the plaintiiïs alleged, — absolutely none, — but only that the
défendants themselves bave not paid what they had agreed to pay.
Is it not apparent that the accident of a loss by fire does not change
the merits of the défense ? It is equally available with or without the
loss, for it in no way dépends on that accidentai circumstance. It is
as good with the cotton in Liverpool as it is with its ashes in the Mem-
phis cotton-shed, and no better or worse in either place. Simply
stated, the broad proposition is, "This was a conditional sale, or an
executory agreement to sell when I pay for the cotton ; and, although
I bave appropriated it to my own use, so long as I do not pay there is
no obligation on me to pay, and no suit for the price will lie. "
"Was such a thing ever heard of," asks Thompson, J., in the Mis-
souri court of appeals, "as that a creditor loses his remedy against
bis debtor by not demanding payment on the day when the debt feli
due?" (Bemridge v. Richmond, 16 Chi. Leg. N. 93;) and we may,
paraphrasing the question, ask, "Was ever it heard that a buyer
can refuse payment for the sole reason that he has not paid?" It
must be confessed this may be a possible inference from the literal-
ism of the rule, but it does not certainly appear that it was ever in-
tended to hâve such a construction as that by the men who made it ;
nor does the case of Leigh v. M. é 0. R. Co. 58 Ala. 166, justify
such a construction of it. Nor does the case clearly fall within the
third rule of Mr. Justice Blackbden, so much relied upon by the de-
fendants. 1 Benj. Sales, (éth Amer. Ed.) p. 359, § 366; Id. p. 376,
§§ 391-393; Id. p. 396, §§ 425-436. And for the reason that thèse
authorities ail show that where delivery has been actually made to
the buyer, the intention to reserve the title to the seller and consé-
quent risk of loss by accident, must plainly appear from the terms of
the contract. Now, this rule does not say, in terms, that the title is
reserved to the seller, but, on the contrary, says that "weighing and
DILIiABD V. PATOK. 629
examinîng the cotton shall be a confirmation of the sale," (whatever
that may mean,) but that "delivery shall not be considered final until
paid for." The construction contended for by défendants is merely
inference from this language, and it is susceptible of différent and
antagonistic constructions. The implications of the parties' dealings
and surrouûdings are not favorable to this construction, and the na-
ture of the trade and property is against it. It is not to be presumed
that the seller assumes such péril in the cotton trade witbont an ex-
press or clearly-implied intention to do so. Occasional and excep-
tional cireumstances might prompt a marchant to make such a oon-
tract to secure his price, but he would hardly désire it as a business
usage in the cotton trade.
The more reasonable construction is that it was intended as a se-
curity of a différent character, for the sole beneflt of the factor
against insolvent buyers, and to enable him, in a case where his in-
terest requires, to keep the cotton in his possession, and refuse to
surrender that possession until payment is made. It may be the
courts would, possibly, in favor of the factor, extend the construction
to cover a case where the purchaser was in actual possession and re-
fused to pay, by holding that it was a conditional sale, and that the
title remained, as between thèse two, with the factor until payment
actually made, — or as between the factor and creditors of the pur-
chaser, — but it is hardly possible the courts would, in favor of the
buyer after he had taken absolufce dominion, construe the rule to be
only an executory agreement to sell when payment was made. If so,
as to either construction, without a stipulation to the contrary, the
risk of loss by fire would, undoubtedly, remain with the factor.
Thèse are, however, perplexities about this construction, as between
the factor and those claiming against him, it is best to leave for dé-
cision when the cases arise. But as between the factor and the buyer,
no matter what the proper construction of the rule may be, the fac-
tor may always waive this security in his favor, deliver the cotton un-
conditionally, and coUect his money. Whenever he delivers the cot-
ton absolutely, without any manifestation of an intention to claim
his security, or, rather, with an expressed or plainly implied relin-
quishment of it, — whatever be its légal characteristics, — from that
moment the title passes to the buyer, the risk of loss by fire is his,
and he can never défend a suit for the price by refusing to perform
the condition or carry out his part of the executory agreement. As
to him the contract becomes executed whenever the seller chooses
to so deliver and he accepts. The seller may, under such a contract,
always waive the stipulation in his favor, and he does this whenever
he delivers with the intention, of not claiming it. That the plaintiffs
did this hère is abundantly shown by the proof. The waiver need not
be express, but may be by implication resulting from acts and con-
duct. ,3 Benj. Sales, p. 742, § 858. Of course, I need not say that
plaintiffs hère would not be permitted to exercise theirrightof waiver
630 rZDEBAI) BEPOBTEB.
âfter a loss by fire, so as to change the rîsk, They did not do this,
but waived their security under this rule by delivery prior to the fire,
■without insisting on payment under the rule before delivery, as they
had often done before. Neither will the défendants, after accepting
this waiver by taking the cotton, be permitted to change the risk by
refùsing a payment which they were under légal obligation to hâve
made on Saturday, before the fire. I do not think either the plain-
tiffs or défendants had any intention of making the kind of contraet
the défendants now prétend to hâve made, bydistorting the language
of this rule; but if they ever did intend to trade under the rule,
they never carried out that intention, so far as this proof shows, and
this is a waiver of it. The proposed usage of rule 9 bas never be-
come a usage at ail as to thèse two members, and this by their own
act.
Judgment ïor the plaintiffs.
Brown and others v. Lee and others.
(DisVriet Court, N. D. Mististippi. March 12, 1884.)
UiBJOtNDSB OF Causes of Action— Joint and Seybral Liabimtt.
Where two or more défendants are sued jointly, a count in the aame action
against one of them alone upon his several liability cannot be suslained.
Demurrer to Déclaration.
Lamar, Mayes é Branham, for plaintiflFs.
G. B. Flowry, for défendants.
HiLL, J. The questions presented for décision arise upon the de-
murrer of the défendant A. G. Jobes to the second count in the dé-
claration. The déclaration in the first count charges that the défend-
ants Lee and G. S. Jobes, under the firm name of Lee & Jobes, drew
their bill of exchange upon the bank of Kosciusko, of whieh said Lee,
G. S. Jober, and A. G. Jobes were the owners and partners, the same
being a private and unincorporated banking house, payable 90 days
after date, which was delivered to plaintiffs and afterwards presented
to the bank for acceptanee and accepted, and when due waa presented
for payment, which was refused, of which the drawers had due notice.
The- second count chargea that afterwards A. G. Jobes, for a valu-
able considération, promised in writing that if plaintiffs would send
the billback he would pay it, which was done, but payment was re-
fused. The letter, which is alleged côntains this promise, is exhibited
with the déclaration, and is signed "Gashier." There is no objection to
]oining the drawers, acceptors, andindorsersliable upon a bill of ex-
change in an action. This suit is properly brought against Lee and
'"'■. S. Jobes, as drawers, and the same parties, with A. G. Jobes, as
UNITED STATES EX BEL. 8PINK. 631
partners, under the name of the Kosciusko Bank, as acceptors. The
question is, cân A. G. Jobes be sbedîn'the samé action, in aseparate
count, upon an individual undertaking in which neither of the other^
défendants are souglit to be made liable. If. in writing the letter
upon which the promise is based he acted as a member of thebank-
ing firm, then he would be liable, if at ail, by the promise made in,
the letter as a partner in the banking firm, and not as an individual.
It is true that by the laws of this state ail partnership contracta are
both joint and.several, and an action may be maintained against One
partner upon a partnership contract as a several and individual obli-
gation ; and if the suit was brought against A. C. Jobes alone, upon
the acceptance as a several and individual obligation, then I see no
reason why the second count might not be joined in the déclaration.
But the gênerai ruie of pleading stated in Chit. PI., and ail the other
elementary works on that subject, is that the joint action must be in
favor of ail as plaintiff, and against ail as défendants, and that there
cannot be united in one action a count against two or more, and in
the same action a count against one of the défendants ; and the high
court of errors and appeals of the state, in the case of Miller v. North-
ern Bank of Mississippi, 5 George, (Miss.) 412, announced the same
rule, which stands unreversed, so far I am informed. Under this rule
I am of opinion that the demurrer to the second count must be sus-
tained, with leave to the plaintifs to amend their déclarations if they
shall be 80 advised.
United States ex reî. Spink.'
United States ex rel. Williams.*
[Circuit Gourt, E. D. Louiaiana. March 3, 1884.)
^ Habbas CJorpub. .
Where parties hâve a right, under the lâws of the United States, to pilot ves-
sels in and eut of the Mississippi river to the sea through 8outh pass^ àlthoûgh
they are not duly Ucensed and commissioned branch pilots under the laws of
Louisiana, tô impriaon them for exercising this right is to imprison tliem in vio-
lation of the laws of the United States.
!. Same.
The orders and writs of this court are issued under and by the aut^prSty of
the laws of the United States, and when theaffldavits against the *elator's were
made in contempt of the restraining orders of this court, and the relators are
imprisoned by virtue of such affldavits, they are impiisoned in violatinn of the
laws of the lîniled States.
!. Same— Jtjrisdiction — Rev. St. 753.
If relators are imprisoned in violation of the laws of the United States, this
court, under section 753, Rev. St., has jurisdlction to issue a writ of habeaa cor-
pus to inquire into the cause of their détention, and upon the hearing it has
jurisdiction, and it is its duty to discharge them.
iReported by Joseph P. Hcraor, Esq., of tlie New Orléans bar.
632 FEDEBAL BEFOBTEIi.
Habeas Corpus.
E. Howard McCaleh, Joseph, P. Hornor, and F. W. Baker, for re-
latera.
James R, Beckwith, contra.
Paedee, J. In our opinion theae parties, Spink and Williams,
hâve a right, under the laws of the United States, to pilot vessels in
and out of the Mississippi river to the sea through South pass,
although they are not duly licensed and commissioned branch pilots
under the laws of Louisiana. It has been practically so decided by
this court in The Flynn Case, the district judge presiding, at the No-
vember term, 1882, which case is now pending on appeal in the Su-
prême Court of the United States. To impi-ison them for exercising
this right is therefore, in the opinion of tbis court, to imprison
them in violation of the laws of the United States. We désire to ex-
press our great respect for the opinions and décisions of the suprême
court of the state of Louisiana; and the opinion hère presented in the
case Ex rel. Williams v. Livaudais, 35 La. Ann. , lately decided, we
hâve considered attentively; but as the question in controversy is
one as to the proper construction of the laws of the United States,
and of their force and effèct, we feel bound to follow the adjudicated
cases of our court, rather than the opinion of a state court, although
of conceded high rank and authority in ail questions of law. Fur-
ther, in thèse présent cases it appears that the affidavits upon which
thèse relatera hâve been arrested, and are now imprisoned, were made
by several persons who are eaeh défendants in certain equity cases
now pending in this court, wherein this same right to pilot through
South pass is involved, and wherein thèse persons hâve been sev-
erally restrained and enjoined, until the further orders of court,
from making such affidavits and instituting such proeeedings. The
various orders and writs of this court are issued under and by au-
thority of the laws of the United States. As the affidavits were made
in contempt of the restraining orders of this court, and as the relat-
ors are imprisoned by virtue of such affidavits, it would seem from
this view also that the relators are imprisoned in violation of the laws
of the United States. If thèse relators are imprisoned in violation
of the laws of the laws of the United States, this court, under sec-
tion 753, Eev. St., has jurisdiction to issue a writ of habeas cor-
pus to inquire into the cause of their détention, and, upon the hear-
ing, it has jurisdiction, and it is its duty to discharge them.
BiiiLiNGS, J., concurred.
united states v. eellbb. 633
CTnited States v. Kellee.
(Circuit Court, If. West Virginia. 18S4.)
1. Criminal Law— Province of Juroes.
Jurors are not tbe judges of tbe law as well as the facts, but must take the
law as given by the court.
2. Samk— Indictment.
Wbere each count in an indictment constitutes a distinct and separate of-
fense, if one is found to be true the verdict must be "guilty," even tbough tbe
jury flnds against the otbercounts.
3. Sahe — Evidence — Reasonabi.e Dodbt.
Prépondérance of évidence against an accused party will not of itself war-
rant a conviction, but tbe jury must be satisfled beyond a reasonable doubt of
bis guilt as charged in the indictment.
4. Manblaughtkr— Collision— Proof—Maliob— Négligence.
In trials for manslaugbter, under tbe statuts of tbe United States, making the
oflicers of a steamer, in case of a fatal accident, liable to prosecution for tbat
offense, it is not necessary to prove malice, provided négligence is proved, and
a violation of tbe navigation laws, nor need it be proved tbat sucb négligence
or violation were willful and intentional.
6. Bame — Dbfinii'ion of Neoligbnce.
Négligence is tbe omission to perforra some duty, or tbe violation of some
rulc, wliicb is made to govern and control one in tbe diëcharge of some duty.
6. Samb— Navigation Laws— Dutibs of Piloïs.
In tbe event of there being no signal made on a descending steamer, as re-
quired by the navigation laws, or a signal made not understood on board of
tbe ascending steamer, tbe latier must stop and not proceed agaio until tbe
two steamers corne to a complète understanding as to the course to be pur-
sued.
7. Bame— Responbibility of Pilots.
If tbe ascending steamer fails to return the signal of the steamer descending,
and ckoosesratbertomake a cross-signal, tbeacceptanceoftbisby the descend-
ing steamer does not excuse the pilot of the other for his flrst fault.
8. Samb.
The wrongful act of the pilot of one vessel contributing to the accident does
not justify tbe pilot of the other vessel for his neglect of duty.
For Manslaughter,
The case arose out of a collision between the steamers Scioto and
John Lomas, in the Ohio river, between Mingo island and Indian
CrosB creek. The défendant was the pilot of the steamer Scioto, and
was navigating his boat up the Ohio river on the fourth day of july,
1882, with about 500 persons on board. The John Lomas was at the
same time coming down the river, also heavily loaded, but was much the
smaller boat of the two, although much more strongly built than the
Scioto. The boats came in sight of each other when they were
about 1,200 yards apart, the Scioto being about Cross creek and the
Lomas about the head of Mingo island. The défendant was indicted
for manslaughter, under section 6344 of the Revised Statutes. The
indictment contained four counts. The ûrst count charged that the
pilot of the John Lomas (his being the descending boat) blew one
Sound of his whistle for passing, by keeping to the right, when the
boats were 900 yards apart ; that the Scioto at the time this whistle
63é MDEBAL BEPOBTEB*
was blown was to the left of the Lomas, on the West Virginia side of
the river; and that after said whistle was blown the défendant, with-
out answering the whistle, steered bis boat deliberately across the
river in the direction the Lotnàs was going down ; and when about
the middle of the river answered with two sounds of his steam- whistle
iustead of one, as he should hâve doue;, and that by reason of this
croas-whistle, and of other acts of misconduct, négligence, and inat-
tention tp his duties as pilot by the défendant, the boats coUided, the
Scioto was sunk, and that by jreason and in conséquence thereof the
lives of 58 persons, whose names were given, and 25 others, whose
names were unknown, were destroyed. This count also contained
vapous spécifie charges of miaconduct on the part of the défendant,
such as being drunk, having too many people in the pilot-house, allow-
ing women to steer the boat, etc. The second count was like the
jB.r$t '^xcppt that it omitted a part of the spécifie acts of misconduct,
.etc., contained in the first. The third count charged that the signal
for pasSing had not been sounded by the pilot of the John Lomas and
answered by the défendant when the boats arrived at a distance
ol 800 yards from each other; that when they arrived at a distance
of 800 yards from each other they were likely to passnear each other;
that notwithstanding this fact both pilots failed to stoptheir engines',
or to change their course, or to do anything to prevent a collision,
but kept on in the direction of each other until the distance between
them Was àbout 500 yards, when the pilot of the John Lomas blew
one Sound of his steam-whistle for passing to the right and the de-
fendant, the pilot of thé Scioto, after some delay and without any
necessity therefor, crossed the whistle and answered with two sounds
of his whistle instead of one; and then contained the proper aver-
ments, showing that the death of the persons above ref erred to waa
caused by the misconduct, négligence, and inattention to his duties as
pilot by the défendant. The fourth count was gênerai, and charged
in a gênerai way, without any spécifie acts of misconduct, négligence,
and inattention to his duty as pilot by the défendant; that the collis-
ion which was the immédiate and direct cause of the death of thèse
persons was caused by the misconduct, négligence, and inattention
to his duties as pilot of the défendant. The évidence as to the po-
sition of thé boats in the river at the time the whistle for passing to
the right by the pilot of the steamer John Lomas was blown, and
also as to the position of the Scioto in the river when the défendant
answered with two sounds of his whistle, was conflicting.
The évidence for the government was that the first whistle of the
John Lomas was blown when that boat was between the island and
Mingo furnace; and that the Lomas was shaping her course towards
the Ohio shore; and that at the same time the Scioto was down
about De Vinny's warehouse, and about one third of the way ont
from the West Virginia shore ; that after this one whistle of the Lo-
mas the Scioto shaped her course, qnartering (as the witnesses called
UNIT£D STATES V. EELLEB. 635
it) to'ward tha Ohio shore, and at about the tnîddlè ôf tlie river the
pilot of the Scioto blew his cross-whistle. On the other Imnd, the
évidence of the défendant was that after passing aroiind Cross-oreek
bar he shaped the course of his boat to the Ohio shore, and ran up
that shore from 80 to 90 yards from it, and about parallel with the
shore, to the place of the collision. He admitted that he did not
stop the engiues of his boat, or do anything else to prevent a collis-
ion, from the time the beats came within 800 yards of each other
until he blew his cross-whistle, when they were from 350 to 400 yards
apart ; and that he then for the first time stopped his engines, and
set them to backing, when he blew his cross-whistle; and that this
was, in his best judgment, at the time, ail he could do to prevent the
collision which followed.
The pilot of the Lomas was examined as a witness for the défend-
ant, and testified that when the défendant sounded his two whistles
the boats were, in his opinion, about 500 yards apart, the Lomas
running down the Ohio shore and the Scioto about the middle of the
river and running quartering to the Ohio shore ; and that her position
in the river was such that he supposed her pilot was determined to
run to the Ohio shore ; and that for this reason he determined to give
him the Ohio shore by starting his engines to backing and thereby
get out of his way; and for that reason he answered the Scioto with
two whistles and gave her the Ohio shore, which, in his opinion, was
the best thing he eould do under the circumstances ; that when he set
his engines to backing he supposed that his rudder was straight in
the water, but he found, whether by his carelessness or what else, he
did not know, his rudder had changed to the Ohio shore, and the
force of the current took his wheel out of his hand and threw the
stem of his boat towards the Ohio shore, and she ran in that position
half way to the place of the collision before he got the oontrol of his
. wheel again, but that when he did so the collision had become inévi-
table. He further testified that the blowing of the cross-whistle by
the défendant had nothing to do with his wheel getting out of his
hands. On cross-examination he testified that this cross-whistle did
hâve something to do with the stopping of his engines, and the at-
tempt to back his boat; and that but for those two whistles by the de-
fendant he would not hâve stopped his engines, nor attempted to back
his boat, and would hâve had no occasion to do so; and that if the
défendant had answered with one whistle, and steered his boat ac-
coràingly, there would hâve been no collision.
Several pilots were examined as experts, and ail of them testified
that if the boats were running directly towards each other when they
were 500 yards apart, and that the pilot of the John Lomas, even at
that distance, blew one whistle, if the pilot of the Sciota had promptly
answered with one whistle, and each boat had steared to the right in
accordance with thèse whistles, that the collision could hâve been
avoided.
636 FEDERAL BEPOBTEB.
W. H. H. FlicJc, Dist. Atty,, and James H. Ferguson, Spec. Asst.
Dist. Atty., for the Government.
John A. Hutchinson and B. B, Dovener, for défendant.
Jackson, J., {charging jury.) It must be gratifying to you that we
are at last approaehing the conclusion of this protracted trial. Its
great importance, both to the country and the aocused, fuUy justifies
the time consumed in its investigation. The défendant is indicted
under section 6344 of the Eevised Statutes, which déclares "that every
captain, engineer, pilot, or other person employed on any steam-boat
or vessel, by whose misconduct, négligence, or inattention to his duties
on such vessel, the life of any person is destroyed; and every owner,
inspecter, or other public offioer, through whose fraud, connivance,
misconduct, or violation of law, the life of any person is destroyed,
shall be deemed guilty of manslaughter. " The indictment in this case
contains four distinct counts, setting up and charging the offense in
as many différent ways. The différence in the counts consists in the
manner the offense is stated, and in describing différent acts under
the statute charged as gênerai misconduct, négligence, and inatten-
tion to duty. Each count in the indictment constitutes a distinct and
separate offense; and if you find from the évidence that the allégation
as laid in any one of the counts in the indictments are true, it will be
your duty to return a verdict of guilty, although you may find against
ail of the remaining counts. It is not the practice of this court to dis-
cuss the effect of évidence submitted to the jury, but to leave its con-
sidération with the jury, as being more properly within the province
of its duty. It is my duty to give you the law applicable to the issue
as made up, which you are sworn to try and a true verdict to render,
under the law and the évidence.
The court is asked to tell you that in the trial of criminal cases
the jury is the judge of both the law and the fact. Such is not the
case. The court explains the law, and it is both your moral and lé-
gal duty to accept it as given you "unless you can say upon your
oaths that you are better judges of the law than the court." Of
course you can disregard the instructions of the court and refuse to
accept the law as given to you by it; but if you do you exercise a
purely arbitrary power, which, in the case of an acquittai, makes the
décision final, although the guilt of the party may hâve been fully
established. It therefore follows that a jury which desires to dis-
charge its whole duty must take the law from the court and apply
it to the facts of the case it is called to pass upon. Before you
can return a verdict of guilty against the accused, under this indict-
ment, you must reach the conclusion that ail the material allégations
contained in some one of the counts in the indictment hâve been fully
proved. It is not enough to convict that there is a prépondérance of
évidence against the défendant; but you must be satisfied from the
évidence, beyond a reasonable doubt, of his guilt as charged in the
indictment, This doubt must be real and substantial, and not an
UNITES STATES V. EELLEB. 637
imaginary or spéculative doubt. It must rest upon the fact that the
évidence is insufficient, in your judgment, to justify you in returning
a verdict of guilty against the accused. If, therefore, you hâve such
a doubt as I hâve described, it will be your duty to give the accused
the benefit of it. It is manifest that when congress passed this act
that its intention was to make ail officers or persons who fall within
its terms responsible for the loss of human life, when it results from
their misconduct, négligence, or inattention to their duty. The law
is humane in its provisions, and no one can question the wisdom and
policy of congress in passing and placing it upon the fédéral statute
books. It is the duty of the court, however unpleasant it may be,
when called upon, to enforce it, and you, gentlemen of the jury, be-
ing an arm of the court in the exécution of the law, if you reach the
conclusion that this défendant bas violated this statute, your plain
duty is to return a verdict of guilty. You will observe, under the
statute, that it is not necessary for you to find that the défendant
was guilty of willful or intentional misconduct, négligence, or inat-
tention to duty. It is sufficient if you find that he was guilty of a
violation of the statute, in the absence of any intent; and if you so
find, then a verdict of guilty should be returned. Otherwise your
verdict should be for the accused.
In this connection it is proper that I should inform you what con-
stitutes négligence. It bas been well defined to be "a breach of
duty." I think, however, the better définition is that it is an omis-
sion to perform some duty, or it is a violation of some rule, which is
made to govern and control one in the discharge of some duty. Ap-
plying this rule of law, if you should find from the évidence that the
accused omitted to perform any duty, or that there was an absence
of proper attention, care, or skill, and the performance of his duties as
pilot of the Scioto. then you must of necessity find him guilty of
négligence ; and that if in conséquence of such négligence the life
of any person was lost, then you must find him guilty as charged in
the indictment. Upon your retirement to your chamber the first
inquiry that should engage your attention is whether any of the per-
sons named in the indictment lost his life in this collision. The
fact that a number of lives were lost at the time of the collision is
not disputed; but it is claimed by the défendant that the collision
was not the immédiate cause of the losing of life of any one of the
persons named in the indictment. You will détermine this question
of fact, and ascertain whether the collision was the immédiate cause
of the death of any one of the persons named in the indictment. If
you find the fact to be as the prosecution claims it, your next inquiry
will be whether the loss of life was in any respect attributable "to
the misconduct, négligence, or inattention to duty of the accused ; ','
for if it was solely due to other causes, then the défendant would be
excused. If, however, it is answered in the affirmative, you should
then ascertain whether the accused was, as charged in the indict-
638 FEDERAIi BEPOSTEa
ment, the pilot on the Scioto, at the wheel, stieering and guiding
her, shortly before and at the time of the collision. ïn considering
thèse questions, youshonld bear in mind the rule of law, that every
one accused of crime is presumed to be innocent until hia guilt is
«stablished by proof.
I bave heretofore called your attention to the rules of criminal law
applicable to this case, and it now beeomes my duty to oonstrue the
rules and régulations for the government of pilota of steamers navi-
gating the rivers flowing into the Gulf of Mexico and their tributaries.
Thèse rules are authorized by an act of congress, and were adopted
by the board of supervising inspectors, June 1, 1871, and, as amended
in 1880, were in force on the fourth day of July, 1882, when the col-
lision occurred. Since their adoption they fumish the paramount
rules for pilots in guiding and steering steamers on the rivers flowing
into the Gulf of Mexico.
Dnder rule 1 * it is the duty of the descending boat, when the
steamers are approaching each other, to give the signal for passing,
indicating on which side she will pass the asoending, boat, and when
such signal is given it is the duty of the ascending boat to promptly
answer and accept such signal so given, which, being done, beeomes
an understanding between the pilots of the two steamers as to the
course each steamer will take to avoid a collision in passing. This
rule was binding on the pilots of both boata at the time the Lomas
biew her first whistle and before the collision occurred, and it was
their duty to obey it. Neither of them should hâve disregarded it,
unless there was at the time such imminent danger of collision that to
acceptât would tend to increase that danger. It is a conceded fact
in this case that the first signal was given by the Lomas blowing one
blast of her steam-whistle, indicating that she desired to pass to the
right of the Scioto, and that the pilot of the Scioto replied with two
whistles. Under this rule it was clearly the duty of the pilot of the
Scioto to accept promptly the signal given by the Lomas, if in his
power to do so. This was his plain duty, and he had no right to dis-
regard it so as to change and "cross the whistle." If he could not
accept the signal of the Lomas without imminent danger to his boat
from collision or otherwise, he should hâve stopped, and, if necessary,
backed her, and waited until he, had arrived at an understanding
with the Lomas. Ordinary prudence demanded this much from an
offieer in bis position, and if he failed to do this he neglected to pur-
sue the course that ordinary care and prudence would require him to
do. If you should reach the conclusion that this action of the pilot
of the Scioto, in replying with two whistles instead of one, produced
confusion between the pilots which contributed to or caused the col-
1 Eu]e 1. When steamers are approaching each other, the signal for passing
shall be one sound oC the steam-whistle to keep to the right, and two aounds
of the steam-whistle to keep to the left; the signais to be madé flrst by the
descendiilg steamer.
TJNIÏBD STATES V. KELLEK. 639
lision, there can be no eseape from the ôonclusion that he not only
did wbat he ought not to hâve done, but he omitted to do what he
should hâve done. But if the blowing of the cross- whistle did not
contribute to or cause the collision, then the act would not of itself be
négligence. But if you should find that the Scioto was in such a po-
sition, without fault of her pilot, when the Lomas blew her first whis-
tle, that it was either too dangerous or too late to accept with safety
the signal so given by the Lomas, and that a collision was so immi-
nent as to be unavoidable, then yOu would be justified in excusing
the défendant. Under this rule this is the ouly excuse the défendant
can offer to justify bis conduot. If, therefore, you End from the évi-
dence that there was no contingeney such as I bave just referred to,
it was his duty to accept the signal as' given to pass to the right of
the Lomas, if he could thereby avoid a collision. Otherwise he should
hâve resorted to ail the means in bis power ta prevent it.
Under rulô 2 ' the first clause provides, where two steamers are
iikely to pass near each other, and the proper signais bave not been
made and answered by the time thèy hâve arrived at the distance of
800 yards of each other, the engines of both boats should be stopped.
Applying this rule, if you find from the évidence that the two boats
were Iikely to pass near each other, it was the duty of the Scioto, if
the Lomas had given no signal by the time they had arrived a,t that
■distance, to stop her engines and check her headway. It becomes,
then, a pertinent inquiry to ascertain whether this was done, and was
the rule complied with. If it was, and stili the collision could not
bave been avoided, then, so far as this défendant was guilty of a
neglect of duty under the first clause of this rule, he should be ex-
cused. But if an observance of the rule on bis part would bave pre-
-vented the collision, then it was his duty to comply with it, and stop
the engines of his boat until a proper understanding was had with
the Lomas as to the course each boat would pursue in passing ; and
a failure to do so was a culpable neglect of duty on his part, which
would be inexcusable. Under the second clause of this rille, if the
two boats had arrived at a distance less than 800 yards from each
other, and no proper signais had been given and answered, or, if given,
not properly understood, it was the duty of the pilot of the Scioto to
stop the engines of his boat and back her until her headway was fuUy
checked, and not to start his boat ahead again until the proper sig-
nais had been made, answered, and understood. You will perceive
1 Rule 2. Shoujd steamers be Iikely to pass near each other, and thèse sig-
nais should nçt bs made and answered by the time such boats shall hâve
arrived at the distance of 800 yards of each other, the engines of both boats
shall be stopped î or should the signais be given and not properly understood
from any cause whatever, both boats shall be baeked until their headway
shall be f ully cheeked, and the engines shall not be again started ahead until
the proper signais are made, answered, and -understood. Doubts or fears of
misunderstauding signais shall be expressed by se veral short sounds of the
whistle in quick succession.
640 FBDEBAL BBPOBTEB.
tbat tbis clause of the rule requires tbe pilot to stop bis boat as soon
as he arrives inside tbe 800 yards — tbe distance fixed by the rule. It
the évidence should satisfy you tbat tbis was not done, tben clearly
tbis is a violation of tbe rule tbat was obligatory on him, and wbich
it was bis duty to observe. It is for you to décide whetber sucb are
tbe facts, and wbether if the rule had tben been observed in ail its
parts, tbis collision would bave been avoided by stopping the engines
of bis boat and cbecking her headway. It was bis plain duty to do
so, and a failure to do it was a culpable neglect of duty.
Under rule 4,* if tbe Scioto was running close on tbe sTiore, and
at tbat time tbe Lomas bad corne so near tbat it was possible for a
collision to ensue, then the Scioto would not bave been justified in
Crossing tbe river in front of tbe Lomas. Tbis rule, of course, must
be conatrued witb rule 1, and it is intended to prevent tbe descend-
ing boat f rom requiring the ascending boat unnecessarily to cross the
river, and at the same time to inbibit her from crossing in front of
tbe ascending boat. But if tbe jury should reaoh the conclusion tbat
when tbe Lomas blew one whisfcle sbe was either on a line witb, or
to the left, of the Scioto, and tbat when she replied witb two wbistles
they continued the same course toward eacb other until tbe collision
occurred, then rule 4 bas no application to the facts of tbis case.
You will, however, apply tbis rule to the facts, and détermine whether
thèse boats bore such a relation to each otber as this rule contem-
plâtes.
In this case the défendant is responsible only for bis own négli-
gence and inattention to duty, and not for tbat of any other. You
are to pass upon the charges as stated in the indictment against bim,
as it is a matter of no importance, so far as tbis trial is concerned,
whether tbe pilot of the Lomas was guilty or not guilty of contribut-
ing to the collision. Both may be guilty, or one may be guilty and
the otber innocent. And in this connection it is to be remembered
tbat any wrongful act of the pilot of the Lomas does not justify this
défendant for neglect of duty ; and the fact tbat the pilot of the Lo-
mas accepted the cross-signal given by the pilot of the Scioto in reply-
ing witb two blasts, is no justification for tbe action of the défendant
in this case, and does not release bim from the conséquences of, or
justify bis act in, refusing to accept the first signal given by the pilot
of the Lomas. And by tbis I mean tbat the rules did not authorize
the pilot of tbe Scioto to change the signal. Ail be could properly
do, if the signal given was one he could not accept, was to stop bis
boat and use ail the means in his power to avert a collision. And it
is for you to say whether he did foUow the rules adopted for his guide
in steering his boat; and whether he did ail tbat any prudent and
' Rule 4. When a steamer is ascending and running close on a bar or
shore, the pilot shall in no case attempt to cross the river when a descending
boat shall be so near that it would be possible for a collision to enaua there-
from.
, SWIFT V. JBNKS. , > 641
eareful pilot could hâve done to avert the great calamity that over-
took his boat. If this collision was the resuit of misconduot, négli-
gence, and inattention to duty of others then the defendant's, and he
in nowise contributed to it, of course it foUows that no blâme for it
can attach to him. He is responsible only for his own conduct on
this occasion, and not for the conduct of any other. You must try
him upon the charges as laid in the indictment, and find whether they
are true or false, and in your investigation you are to pass upon his
acts and ascertain for yourselves whether he did, under the rules of
navigation, and under the circumstancea surrounding him from the
time the two boats came in fuU sight of each other, ail that he could
do as a eareful and prudent pilot to avoid the collision. In this case
no question of error of judgment arises, but simply questions of fact
■which involve his duty, from the time the boats sighted each other
until the collision occured.
I trust that you will bring to the examination of this case that calm
and considerate reâection that a case of this importance requires. It
is important both to the country and the défendant that the facts
should be fairly and impartially considered, and the law properly
applied, that you raay arrive at a just and proper conclusion, and
your action fuUy justified.
The jury found the défendant guilty of manslaughter in manner
and form as charged in the indictment against him; and the court
refused to set the verdict aside.
Swift v. Jenks and others.
{Circuit Court, N. 13. New York. March 3, 1884)
1. Patents— Non-Claim op Apparent Dbvicb— AsANDOirMEisrT.
The omission by an inventor to claim a cotnbinàtion or device apparent upon
the face of his patent amounts to a dedication of the neglected contrivance to
the uses of the public.
2. iNJUNCTioN — Not to Issub when it wocld Woek Injcsticb.
An injunction should not issue when it would work great harm to one party
without corresponding beneât to the other, at least where adéquate protection
can be aâorded by other means.
Motion for Preliminary Injunction.
Duell é Hey, for complainant.
Neri Fine, for défendants.
CoxK, J. This is a motion for a preliminary injunction. The com-
plainant is the inventor of an alleged improvement in lubricators
for which letters patent were issued August 28, 1883. The claims
in controversy areas foUows:
v.l9,no.9— 41
&^ 7BDBBAL BEFOBXEB.
"(5) In combjnation with the steam-condensing duct and Its horizontal ex-
tension,, c, the lubricant-oup composed of métal and provided in front of the
duct-éxtènsjon, ç, with an observâtion-port, r, covered with a transparent
plate, substantiàlly as and for the purposes aet forth.
" (6) In combination with the oil-cup of a lubricator, the port, r, covered by
a glass plate, and the pipe or tube, c, having an inclined end or face, substan-
tiàlly as set forth."
Prior to tHis time, and on the second day of May, 1882, letters
patent for a, similar invention were issued to the défendants. An inter-
férence was declared, and, after a thorough investigation, the examin-
ers and commissioner concurred in deciding that the complainant
was the prior inventor. But the proceedings in the patent office de-
termined more. Upon défendants' motion to dissolve the interférence
the commissioner was required to pass upon the question whether or
not the subject-matter claimed was patentable. Varions références,
whiçh, as was urged by the défendants, anticipated the complain-
ant's invention, were presented, and although the examiners in chief
and the commissioner were not in accord upon this question it can-
not be denied that the issuing of the patent was, to the extent that
the question was there investigated, a décision in favor of the com-
plainant. The proceedings in the patent office having, as between
thèse parties, determined, — First, that the complainant was the prior
inventor, and, second, that the subject-matter of the patent was not
void for want of novelty, the complainant would be entitled, if there
were no other considérations, to the injunction prayed for, there being
no dispute as to the infringement. Smith v. Halkyard, 16 Ped. Eep.
414; Shuter v. Davis, Id. 664.
But the défendants again insist that the patent is void for want of
patentable novelty, and in support of this défense they produce vari-
ous références not presented to the examiners. They also produce
affidavits tending to show that one Giles was the original inventor of
the patented device or combination. But the argument having the
most weight with the court is the one based upon the complainant's
prior patent of March 21, 1882. It is urged that he there fully dis-
closes the subject matter of olaim 5, supra. The language of the
spécification is as folJows :
"It is not essential that the cylinder should be wholly of glass, so long as
that portion directly opposite the end of the tube or pipe, E, is transparent,
to expose to view the end thereof * * * the cylinder may be conatructed
of métal, with a window or ' sight ' on a line opposite the tube or pipe."
The métal cylinder with the . glass observation port opposite the
end of the tube was not claimed in the March patent, and the lan-
guage of Mr. Justice Bradleï in Miller v. Brass Go. 104 U. S. 352,
is therefdre applicable:
"But it miist be remembered that the claim of a spécifie device or combi-
nation, and an omission to claim other devices or combinations apparent on
the face of the patent, are, in law, a dedication to the public of that which is»
TdE ÉISS-WHJEBL CASE. 643
not daiined. It is a déclaration that that which is not claimed ïs either nofc
the patentee's invention or, if Iiis, he dedicates it to tlie public."
It is argued for the complainant that the patent in suit is not for
a particnlar device but for a combination, and that, construed "most
favorably for the défendants, the Maroh patent discloses but one ele-
ruent of that combination. This contention présents for considéra-
tion a niimber of questions not argued upon the motion, but which
may perhaps be sufficiently suggested by an examination of Slawson
V. Grand St. B. R. 107 U. S. 649 j S. C. 2 Sup, Ct. Eep. 663, and
other like authorities.
Although the papers presented oh this motion hâve been carefully
examined it is not the purpose of the court to discuss the défenses
referred to at this time or express an opinion regarding them; they
should be disposed of only after careful considération on final hear-
ing. They are mentioned hère simply to show that the défendants
hâve sucoeeded in raising a sufficient doubt as to the validity of the
complainant's patent to induce the court to withhold the writ asked
for provided the complainant's right can be fully protected withput
resort to so positive a remedy. Where an injunction will work great
injury to one party without corresponding benefit to the other it should
not ordinarily issue, especially where adéquate protection can be had
without it.
An injunction should issue unless the défendants withiii 15 days
after service of a certified copy of the order entered upon this décision
shall give a bond with two or more sureties to be approved by a com-
missioner of this court, eonditioned to keep an account of ail the lubri-
cators manufactured and sold by them and to file such account duly
verified once a month in the office of the clerk of this court, and to
pay the amount of any final decree which may be awarded against
them ; the penalty of the bond to be in such sum as may be agreed
on by the parties, or if they are unable to agrée, as may be fixed by
the court upon proof by affidavit or otherwise of the estent of the
défendants' business.
The Fish-Whbel Case.
Williams v. McCobd and others.
{Circuit Court, D. Oregon. March 26, 1884.).
Patbnt por "Rbvolving Bip- Net."
Tlie patent issued to Thornton F. Williains on August 3, 1881, and nnmbered
245,251, for an " improvement in revolving dip-nets," deolared void for want of
both invention and novelty, the same having been invented and put into opéra-
tion by Samuel Wilson at the Cascades. of the Columbia in the sprlng of 1879,
f rom which machine the said Williams, in the fall of that year and the spring
of 1880, construoted hls "revolving dip-net." .
644 FEDEEAIi EBPOKTEB.
Suit for Infringement of Patent, and for an account and injunction.
D. P. Kennedy and WiUiam B. Gilbert, for plaintiff.
H. B, Nicholas, for défendant.
Dbady, J. Tfais suit was commenced on January 12, 1883, and is
brought against the défendants for an account, and to recover dam-
ages for the wrongful use, by them, of a certain "revolving dip-net,"
alleged to hâve been invented by the plaintiff, and for an injunction
to restrain them from the further use thereof. The bill alleged that
the plaintiff, being the first and original inventer of such. dip-net, on
November 4, 1880, applied for letters patent thereon, which were
duly issued to him on August 2, 1881, and uumbered 245,251; that
the défendants, on March 1, 1882, without the consent of the plain-
tiff, constructed "a revolving dip-net on the south side of Bradford's
island, in the Columbia river, • » * embracing the improvement
and invention described in said letters patent," and maintained the
same"in opération during the fishing seasonof 1882," — that is, from
April Ist to August Ist, — to the damage of the plaintiff, $100 ; and still
continues to operate the same,
The défendants, answering the complaint, deny that the plaintiff is
the original inventor of the net in question, and that the same was not
in public use when the plaintiff applied for his letters patent, and allège
that said dip-net was fuUy described in Harper's Monthly Magazine
for May, 1880; that Samuel Wilson, of Dallas, lowa, invented and put
in opération, on the Columbia river, the dip-net described in the bill,
in April, 18Î9, long before the alleged invention of the plaintiff, and
that the plaintiff surreptitiously availed himself of said Wilson's idea
and invention, and obtained a patent for the same while the latter
■was engaged in perfecting it; but that' neither said Wilson nor the
plaintiff were the first inventors of said dip-net, and that the same
had been in use in other places, by other persons, for the purpose of
catohing fish, for ma.ny years before, specifying, among otbers, sundry
places and persons on the Catawba and Pee Dee rivers, in North Car-
olina, where,it had been in use, in some instances, for more than 50
years ; that on January 4, 1882, the défendant McCord, being the first
and original inventor of certain improvements in a fish wheel, made
application for letters patent thereon, which, on May 16th of the same
year, were duly issued to him and other défendants, as the assignées
of said McCord, and numbered 251,960, for an invention entitled a
"fish wheel;" that afterwards, in 1882, the défendants licensed the
"Snail Wheel Fishing Company," a corporation duly formed under
the laws of Oregon, the défendants being the officers and stockholders
thereof, to conduct such a fish wheel on the south side of Bradford's
island, and that said corporation did construct and operate such
wheel at said place during the fishing season of 1882, which is the
same machine referred to and mentioned in the bill as being an in-
fringement on the plaintiff's dip-net.
It appears from the évidence that fish wheels or dipping wheels
THE FISH-WHEBL OASB. 645
have been used on varions rivera in North Carolina for the purpose
of taking shad and other fish that are in the habit of ascending the
same, as alleged in the answer. The wheel consisted of an axle or
shaft of four or five feet in length, resting horizontally upon two up-
right posta or forked timbers planted on either side of a sluice or
chute in the river, into which were let three pairs of arms or bows
from three to eight feet long, owing to the depth of the water, and
equidistant from each other. Thèse arms were made of tough wood,
and bent forward at the outer end like a plow-handle, and covered
with a netting of twine so as to constitute a "dipper," not unlike in
appearanee, aocording to the language of a witness, "the top of a
falling top buggy." The wheel was turned down stream by the force
of the current striking the back of the "dippers," one of which was
always in the wàter, and into which the fish ascending the stream by
that chute or sluice went, and were cari'ied upwards and backwards
over the shaft and lodged on an inolined trough made of slats placed
between the inner ends of the arms, on which they slide down into a
box or tank immediately outside of the in-shore post.
In the spring of 1879 and prior thereto, Samuel Wilson, a carpenter,
who was living at the Cascades of the Columbia, on the Washington
side, conceived the idea of taking fish by means of a wheel driven by
the current, and actually constructed one and put it in opération there
by April, 1879, but on account of the health of himself and family
he returned to lowa in May of that year, leaving his wheel in charge
of James Parker, who took a few fish in it before the high water car-
ried it away. Afterwards, on March 28, 1882, Wilson applied for a
patent on his invention of "a new and improved fishing wheel," which
was issued to him on September 12, 1882, and numbered 264,395.
In thé spécification it is described as "a wheel constructed with nets
embraced in four or more sections thereof, to each of which nets an
opening is made from the periphery or near it, and from which there
is an escape passage from the center of the wheel, and at one side,
to a chute leading to a cage-net, ail so arranged that the wheel, being
located in a fish-way, to be rotated by the water flowing against it, or
by another wheel attached to the shaft outside of the fish-way, the
mouths of the passages into the nets of the wheel will open at the
rear of the wheel to the fish ascending the stream, to be entered by
them as they attempt to pass under the wheel, whereby, as that side
of the wheel rises, the fish will be caught, carried up, and shunted
out through the aforesaid side central passages into the chute, by
which they will be delivered into the trap-cage, to be taken out at
pleasure, as hereinafter more f uUy described. " The size of the wheel
might vary from 10 to 40 feet, owing to the depth of the water; and
the one constructed was about 20 feet in diameter.
As early as the spring of 1877 the plaintiff lived at the Cascades of
the Columbia, on the Oregon side, and was engaged in taking fish
there with the ordinary gill and dip net, and has lived there ever
646 FEDERAI BEPOETBB.
since. It îs asserted in his testimony that he "conceived" the ideaof
this revolving dip-net in the fall of 1878; and that he commenced to
construct it then, but did not get the lumber in tinae to finish it for
the fishing season of 1879, and therefore abandoned it or gave it up
till the fall of that year, when he went to work on it again, and got it
into opération in time for the fishing season of 1880, and afterwards
obtained a patent for the same, as alleged in the bill. In his spécifi-
cation the plâintitf describes bis alleged invention as "a new and use-
ful improvement in revolving dip-nets," and claims "as new" therein :
(1) "ïhe box-nets, I, constructed with holes, M, at their inner ends, sub-
stantially as herein ahown and described, whereby the flrst ( ?) [flsh or nets] are
discharged, as set forth; (2) the nets, I, secured to arms of shaft, E, leaving
an opening at the front, except at the inner part, for theinlet of the flsh, and
at the rear an opening for their outlet, as shown and described; and (3) the
combination, with a rotary wheel having nets, I, with discharge openings,
M, near the hub, and having the inner part inclined towards said openings.
of a réceptacle, J., arranged as shown and described."
But the decided weight of the évidence is that, in the fall of 1878,
the plaintiff was engaged in getting together the material and pre-
paring the timbers for a fish "trap" at the Cascades, and not a wheel
or net, which he never oompleted, and is now falsely claiming to be
the conception or beginning of his "revolving dip-net;" and that in
the fall of 1879 he availed himself of his knowledge of Wilson's inven-
tion, thinking, it may be, that he had abandoned it, and constructed
the machine for which he afterwards obtained a patent.
In the May number of Harper's Monthly for 1880 there is a wood
eut of the North Carolina wheel, (page 849,) illustrating an article,
"The Shadand the Alewife." The Wilson wheel, either as patented
by himself or the plaintifï, although in the main anticipated by the
North Carolina wheel, was, so far as appears, constructed without
any knowledge of the existence of the latter, and is an improvement
upon it in some material partioulars. But the plaintiff's wheel being
a mère copy of Wilson's, with some immaterial changes in form and
material, his patent is void, both for want of invention and novelty.
Walk. Pat. §§ 23, 52. The wheel used and patented by the défend-
ants is probably an improvement on Wilson's, particularly in the ar-
rangement of the basket or nets, whereby the fish are discharged below
the shaft, and are less liable to be injured. But as the patent to the
plaintiff appears to be void for the reasons stated, it is not necessary
to consider that question. But I oannot refrain from adding, on be-
half of the public, that I tbink the best disposition that could be
made of this controversy would be for the législature to intervene in
the interest of the fish in the future, and prohibit the use of thèse
murderous machines anywhere in the waters of the state.
The bill is dismissed, with' eosts.
DUKE V. GBiHAM. 64:7
Duke v. Gbaham.
(Dittriet Court, N. D. Mississippi. March 6, 1884.)
1. CONTRACT TO ASSIGN PATBNT-RiaHï— 8P^CIFI0 PERFORMANCE— IHJDHOTIOIÎ.
Where it was mutually agreed between a patentée and the inventor of an
improvement upon his device that the patentée should surrender his individual
right, and a new patent for the itnproved device should be applied for by the
, t\yo parties jointly, hdd that in equity they were joint ownera of the patent as
improved by the subséquent invention, and that the inventor of the improve-
ment could restrain the patentée from usiDg his patent, except for their joint
beneflt.
2. aAMB— JURISDICTION OF FEDERAL COURT.
HM, aiso, that the controversy related to the patent-right itself, and -was
within the jarisdiction of the circuit court, without respect tu diversity of citi-
zenship.
In Equity.
■ Lamar, Mayes é Branham, for complainant.
H, 4. Barr, for défendant.
HiLL, J. This cause is submitted upon bill, answer, exhibît, and
proofs, from which the foUowing facts appear :
In 1876 the deferfdant, belng the sole owner of the patent of what is known as
the Swift cotton press, employed complainant as his agent to sell the right to
erect and use said cotton press, and to manufacture and put the same up in the
State of Texas. Durlng that time complainant invented and madecertain val-
uable improvemeuts on said press, rendering it much more yaluable. An agree-
ment was entered into between complainant and défendant, by which it was
mutually agreed that the défendant should surrender his individual right
under the Swift patent, and that a new patent should be applied for, for the
same invention, with the improvement of complainant— -in other words, of the
Swift invention as improved by complainant; the application to be made and
the patent to be issued in the joint names of complainant and défendant;
complainant bef ore that time having assigned the one-half interest in his said
invention to défendant.
The bill charges that défendant fraudulently represented to com-
plainant that he could not use his invention without an infraction -of
the Swift patent, and that if heused it he would charge him as a roy-
alty upon each press the snm of five dollars; and to induoe complain-
ant to transfer to him the one-half interest in his invention, he prom-
ised that the new patent named be extended for 21 years, instead of
17 years; and further charges that the défendant did not comply with
his contract by the surrender of the Swift patent, but, upon the con-
trary, continued to manufacture and sell presses under it, to the injury
of complainant. The allégation that défendant continued to manu-
facture presses under the Swift patent alone and in his own name
is denied in the answer; and dénies that he bas abandoned its use
since said contradt, but does not know whether his solicitors, as they
were authorized to do, made a formai surrender of ail rights under
the Swift patent. The proof on this point is not sufficient to over-
come this déniai in the answer. The contract was evidently a mutual
tî4S FEDEEAL EEPOBTER.
oue between the parties. Complainant could not rightfully make hia
invention available without the beneiit of that secured by the Swift pat-
ent, unless he procured a license to do so, for which he would hâve had
to pay a royalty such as might be demanded by défendant; and défend-
ant could not rightfully avail himself of the advantages of the inven-
tion and improvement made by complainant, without a license, and
such royalty by way of compensation as complainant might demand.
To obtain the benefit of the Swift invention, and to prevent its being
used in any other way than in connection with his improvement and
invention, was the considération moving complainant to make the as-
signment, and was a good and valid considération upon complainant's
part ; and to get the benefit of complainant's invention and improve-
ment was the considération moving défendant to agrée to eurrender his
individual right under the Swift patent, and was a good and valid con-
sidération, and estopped défendant from using the invention for his in-
dividual benefit, or, aside from its use, under the invention and improve-
ment of complainant. The resuit is that the complainant is entitléd
to a decree enjoining and restraining défendant from ail right under
the Swift patent, or of transf erring the right to make and use presses
according to that invention only in connection with and as part of
the invention of complainant, secured by the letteïs patent of No-
vember 16, 1880 : provided, however, that this court has jurisdiction
to maintain the bill and grant the relief prayed for, or any part thereof,
which it is denied that this court has conferred upon il.
If this had been a transaction accruing after the issuance of the let-
ters patent, the parties both being citizensof this state, it is clear that
this court would hâve no jurisdiction of the subject-matter of the suit,
but it is a question involving the property rights, so to speak, of the de-
fendant in the letters patent themselves, and as between the copartners
themselves. The bill seeks to set aside the rights conferred upon de-
fendant as one of the partners, and to vest the entire right in com-
plainant. This, it seems to me, affects the patent, and also seeks to
restrain the défendant from using in any way the rights conferred
under the Swift patent, and which, by the understanding of the par-
ties, was to become, in connection with complainant's improvement
thereon, the joint property of complainant and défendant, — the rights
secured by the letters patent issued by the government November 16,
1880, — and is essentially différent from rights growing out of contracts
between the patentées and third parties.
I am of opinion that this court has jurisdiction to détermine the
question as to the right of the parties to the rights and beneûta con-
ferred by the patent issued to them by the government, and enforce
their rights by a proper decree. I am further of opinion that the
complainant and défendant are in equity the joint ctwners of the Swift
patent, or the rights secured under it as improved by the inven-
tion of complainant, and that the complainant has a right to hâve
défendant, and ail persons claiming under or through him, ènjoined
MATTHEW8 V. GBBEN. 649
and restrained from making or using cotton or hay presses as in-
vented and made, and secured by the letters patent known as the
Swift invention and patent, except as in connection with complain-
ant's improvement, and under the rights conferred under the patent
last. issued. A decree will be entered accordingly, and that each party
pay one-half the costs of tbis cause.
Matthews and others v. Gbben.*
'Circuit Court, E. D. Pennsylmnia. February 11, 1884.)
Patent — Licbnsk— Salb of, to Satisft Jupgment Dbbt.
A license to use a patented invention may, by a bill in equîty, be subjected
to sale for tlie paymeat of a judgtnent debt.
Hearing on Bill, Answer, and Proofs.
This was a bill in equity by John Matthews and others, citizens of
New York, against Eobert M. Green, a citizen of Pennsylvania, set-
ting forth that by an agreement under seal, dated the thirteenth of
February, 1874, complainants, in considération of one dollar, granted
to défendant the exclusive right to use Matthews, patent steel foun-
tains for aerated beverages, patent dated June 25, 1872, No. 182,411,
and "Mathews' patent wagons for transporting soda-water f ountains, "
patent dated April9, 1872, No. 125,592, for the term of the patents,
within the city of Philadelphia, provided that défendant should pur-
chase from complainant within four years a number of fountains,
equalto one for each 500 inhabitants of the territory; and the défend-
ant agreed to purchase from complainant ail the fountains he might
need in his business, and not to sell or dispose of the fountains to go
outside of the territory without the written consent of the owner of
the territory in which he might désire to send them, nor to continue
to use the same, except within the territory granted after notice given
by complainants. In pursuance of this agreement, a large number
of fountains, to the value of about $24,000, were furnished to défend-
ant, and for a balance of the price he gave certain promissory notes,
upon which the complainants had obtained judgments, in the court
of common pleas of Philadelphia, for f4,709.99, $1,117.17, and
$1,203.16, respeetively, and upon the first judgment a writ oî fieri
fadas had been returned, "no goods." That the défendant had neg-
lected and refused to perform the covenants of said agreement by
''ailing to pay the notes, and by using the fountains without the lim-
ita of Philadelphia, after notice. It was provided in the agreement
that, upon the failure of the défendant to perform the covenants, the
"Reported by Albert B. Guilbert, Esq., of the Philadelphia bar.
650 TEDEBAL KEPOBTEB.
complainants, at their option, and they being the judges therëoî,
might cancel the same. The bill prayed an injunction restraining
the f urther use of the patents ; that the agreement should be delivered
up and canceled; or, in the alternative, that the lioense or right (if
any there be) of the défendant in the patents be ordered to besold by
the decree of the court, to satisfy, so far as may be, the complain-
ants' judgments, and an aceount of the profits realized by the use of
fountains outside of Philadelphia. The défendant claimed that be
had sustained damage by reason of defects in the fountains, and by
the failure of the complainants to protect him from an interférence
by parties manufacturing similar fountains, and contended that the
written contract had been modified by an understanding that in cer-
tain cases he should bave the right to use the fountains without the
limits of Philadelphia. It appeared that the défense of defects in the
fountains had been made by the défendant in the actions upon the
above-mentioned promissory notes, and that in one case the jury had
rendered a verdict for $1,000 less than the olaim of the plaintiffs,
and in the remaining two cases the jury had rendered verdicts for the
full amounts of the notes. The défense of failure to protect from in-
fringement by other manufacturers was also set up as a défense in
thèse suits. Whether, however, any évidence was given under it,
or whether it entered into the cooputation of damages, was a ques-
tion in dispute. It also appeared that in 1879 complainants made
oath to the invalidity of their patent for fountains, and surrendered
it for the purpose of obtaining a reissue.
Wayne McYeagh, (with whom was G. 'T. B'ispham,) for complainants.
The matters of défense hâve passed in rem judicatam. The defend-
ant's right was to use, not to make and sell, and not being a grant of
an entire interest, was a mère license. Gayler v. Wilder, 10 How.
494; Hayward v. Andrews, 106 U. S. 673; S. G. 1 Sup. Ct. Eep.
544; Walk. Pat. 216. A patent-right may be taken in exécution by
bill in equity. Aqer v. Murray, 105 XJ. S. 126. A license may be
equitably conveyed. Wilson v. Stolley, 4 McLean, 275.
Frank P. Prichard, (with whom was John G. Johnson,) for défend-
ant.
Complainants are not entitled to an injunction to restrain a pur-
chaser from using purchased machines because he has failed to pay
a balance of the price; nor are they entitled to an injunction re-
straining the use of the machines outside of Philadelphia s ince the
remedy provided by the agreement for that use was the forfeiture of
respondent's exclusive right within the territory, Complainants bave
shown no such irréparable damage as entitles them to the aid of a
court of equity.
BcTLBB;, J. We see no serions objection tp granting the relief
asked for by the third prayer^ of the bill^ — that the license held by the
respondent be sold towards satisfying the complainants' judgments.
The paper of Febraary 13, 1874, executel by the parties, was in-
TÛE ABHLAND. 651
tended to and does control and regulate the use of ail the "foun-
tains " obtained. It is, in effeot, a license conferring on the respond-
ent a right to use the fountains in the city of Philadelphia, to the
exclusion of ail other persons. The compensation or priée named,
and to be paid, waj the considération for the fountains, and the use,
thus limited. The respondent having failed to pay the judgments
recovered, for money due under thia contract, it is just that the
license should be subjected to sale for this purpose.
The questions arisiug out of the first and second prayers need not
be discussed. It is suflScient to say that the relief just indicated is
ail the complainants should hâve on the bill.
A decree may be prepared acoordingly. /
Ihb Ashland.*
{Oireuit Court, E. D. Louidana. Pebruary 12, 1884.)
1. Salvaqe,
Salvaçe refused in case where the facts showed that libelants should hayo
bad some knowledge of how the vessel got adrift, with her chains and ropes
missing, she having been showû to bave been securely fastened a short time
before.
2. COSTS.
Where both parties bave unnecessarily encumbered the record, no costs will
bê allowed.
Admiralty Appeal.
R, King CatUr, for libelants.
A. G. Brice, Joseph P. Hornor, and 2^. W. Baker, Ion claîmants.
Pabdee, J. The Ashland was undoubtedly cast adrift from the
landing where she was tied by some persoa or persons, for unlawful
purposes. If she was loosed from the shore the ropes and chains
with which she was tied would hâve remainéd fastened to her, and
been dragged along after her in her course down the river. -If she
was loosed from her deck or from aboard, the ropes and chains would
hâve remainéd fast to the posts ashore. If she was loosed by cast-
ing off both ashore and aboard, the chains, at least, would hâve re-
mainéd to show the fact. The shore showed signs of the ropes and
chains having been dragged out as the boat went down stream,
and neither ropes and chains were found attached to the mooring
posts. The conclusion is irrésistible that she was cast adrift by let-
ting go the shore end of the ropes and chains with which she was
moored, and that she dragged the ropes and chains out after her.
The libelants say that they stood on the levée about one and oue-balf
^ Reported by Joseph P. Hornor, Esq, , of the New Orléans bar.
653 FEDERAL EEPOETEB.
squares above where the Ashland was tied, and saw a light out in the
liver which looked like a barge afloat, and which they boarded and
found to be the Ashland. From where they say they stood it was
impossible for them to hâve seen the Ashland "out in the river," for
they stood directly above where she was tied and from where she was
cast adrift, without she was puiled out into the river. Unless she
was puUed out, she would, of necessity, go down with the current,
drifting directly away from libelants and not getting out into the river
until a long distance further down stream; and it seems this was the
fact, for when she passed the coal-yard, four squares below, she was
from 100 to 150 feet out from the bank. From thèse facts it is safe
to say that libelants boarded the Ashland either at or very near her
landing. They should bave found the ropes and chains attached and
dragging after. They found nothing of the kind, except a pièce of
rope.
Taking the aforesaid facts into considération, with the évidence of
libelant Fisher, corroborated by libelant Deibel, and by Stubbs, De-
fuer, and Merchant, to this effect, "I was standing on the levée at
Burdette street. Mr. Deibel and myself were together, and we started
up the street, and stopped at Schilling's box factory, and Stubbs, De-
fuer, and Merchant came along, and so I then saw a ligkt out in the
river, and I said, ' Don't that look like a boat going down the river '?'
and they ail said ' Yes, it does ;' and then Deibel said, ' There is no harm
in going to see;' and then Deibel and Fisher went to Deibel's boat, al-
ready prepared with a 550-foot Une, — it would appear that some ex-
plartàtion should be given of the means by which the Ashland got
adrift, with her chains and ropes missing, before salvage should be
awarded libelants, who, under the circumstances, should hâve had
some knowledge of the matter.
This unfavorable view of libelants' demand for salvage, derived
entirely from undisputed facts and circumstances in the case, renders
it unnecessary for me to review and analyze the great mass of con-
flicting évidence brought up in the transcript. And it is a relief to
me to escape this task, for, after a thorough examination and consid-
ération of it ail, I am unable to say on which side the truth lies. It
is inexplicable to me that so muoh evidently manufactured évidence
should be brought forward in such an originally trifling case. And
it is not confined to one side ; for, while the claimants bave offered
some ridiculoùsly gotten-up stories as to a conspiracy on the part of
libelants to cast the Ashland adrift, the libelants hâve not hesitated
to swear away. the réputation for truth of some highly respected and
disinterested piarties, personally known to me for years as men of f air
réputation for honesty and veracity. And then the re?ord shows ail
thé détails at length of a disgr^aceful transaction between Fisher, one
of thé libelants, and the agent of claimants, in regard to paying
monéy for évidence, of which it is impossible to say from the évi-
dence whether it was honest on either side. If Fisher was acting
THE PRINZ GEORG. 653
honestly in this transaction, then the inference is fltrong that he was
implicated in casting the Ashland adrift. That olaimants' agent was
aeting honestly in the transaction can only be found at the expense
of his intelligence. Swindling on the one side, and attempted suborn-
ation of perjury on the other, seems to be the most apparent con-
clusion from the showing made in the record. In the argument each
side charged the other with the blâme in incumbering the record with
80 much immaterial matter, so largely increasing costs in the case.
Apparently the charge is correct, and on that account I deem it proper
to divide the costs.
A decree will be entered in the case dismissing the libel, neither
party recovering costs in the district court, but each party paying his
own ; the costs of this court, including cost of transcript, to be di-
vided, each party to pay one-half.
ÏHE Pbinz Geobg.*
(District Court, E. D. Loaisiana. February, 1884)
1. JoiNDEK OF Parties.
Where a thing is défendant, and several persons are assertîng rights in it,
distinct, but before the same tribunal, the proceedings are, lor certain purposes,
necessarily to be considered together; i. «., whenever it is necessary to rank the
claims or to proportion the proceeds.
2. Same.
When the claims rest upon a charge of a voluntary withholding of provisions,
etc., the cases necessarily involve a common question, viz., whether an adé-
quate supply of provisions wasoriginally laden on board. The case Is therefore
analogous to cases of salvage or collision, in this respect, and for this leason
the joinder would be permissible.
3. Same.
The joinder is allowed even in cases which are in theîr origin distinct, and
hâve no connection, save that they are asserted againsta common re».
In Admiralty. An exception.
Richard De Gray and R. King Cutler, for libelants.
E. W. Huntington, H. L. Dufour, Geo. H. Braughn, Chas. F. BucJc,
Max Dinklespeil, and Emmet D. Craig, for claimants.
BiLLiNGS, J. This cause has been heard on an exception of a mis-
joinder of parties, The numerous libelants were steerage passen-
gers on the libeled vessel on a voyage from Palermo to the port of
New Orléans, and hâve joined in the suit to recover the penalty
against the vessel established by the act of August 2, 1884, entitled
"An act to regulate the carriage of passengers by sea," (22 St. at
Large, 186,) as well as for the recovery of further damages. The suit
is a proceeding in rem, and the numerous libelants assert distinct
iReported by Joseph P. Hornor, Esq., of the New Orléans bar.
654 FEDEBAL I^EPOBTJSB.
claims, eaob fpr himself. Can such daims be joined in one suit? I
think, upon principle as well as authority, the question must be an-
swered in the affirmative, Where a thing is défendant and several .
persons are asserting rights in it, distinct, but before the same tribu-
nal, the proceedings are, for certain purposes, necessarily to be con-
.sidered together; i. e., whenever it is necessary to rank the claims or
to proportion the proceeds. This would happen whenever the pro-
eeeds should be insufficient to pay ail the claims in f ull. Again, when,
as in this case, the claims rest upon a charge of a voluntary withhold-
ing of provisions, etc., the cases necessarily in volve a common ques-
tion, viz., whether an adéquate supply of provisions was originally
laden on board, The case is therefore analogous to cases of salvage or
,QOllision in this respect, and for this reason the joinder would be per-
missible. But I think the joinder is allowed even in cases whioh are
in their origin distinct, and hâve no connection save that they are
asserted against a common res. When there is a suit in rem, it is a
prerequisite of jurisdiction that there should be a warrant and a seiz-
ure. In thiese cases there must be either the expense of 60 seizures,
or there must be a joinder that one seizure may arrest for ail the
claims. Therefore the joinder is allowed. Thè difficulties of an-
swering and defending are net enhanced, and the expense is reduced.
It is for this reason, also, that the statute permits that suits sepa-
rately commenced may be Consolidated by the court when they are
"of a like nature or relative to the same question." 3 Bt. 21; Eev.
St.§ 921.
Judge Ware, speaking of unconneoted claims of material-men, thus
lays down the rule :
"Being maritime liens, there is no doubt that they may be enforced by pro-
eess in the admiralty, where ail may join and hâve their rights settled in a
single suit; or may intervene for their own intereat, after a libel has been
flled, and hâve the whole raatter disposed of in or under one proceediiig, or
one attachment, instead of haviag as many suits as there are creditors. " The
É'ull of a New Bhip, Davies, (2 Ware,) 203, 205. See, also, Judge Bbtt's
opinion in Tîie Ùhilde Harold, where the same rule was followed, Ole. 275.
The objection is not that the cause of each libelant is not distinctly
and issuably stated, but that they are ail stated in one pleading, and
are in their nature separate causes of action accruing to distinct per-
sons. In other suits the ruling might be very différent, but in a pro-
ceeding in rem, in the admiralty, this is not irregular or unauthorized,
and the exception must be overruled.
THE COBOZAL. 655
The C0R0ZA.L.*
{District Court, E. D. Louiùana. February, 1884.)
Amendmbnts to PijBadings— Admiraltt RuiB No. 24.
Admiralty rulo No. 24 is not an arbitrary rule. It does not mean that in
every case counts presenting new causes of action may, under ail circûmstances,
beadded;but leavesthe matter to the discrétion of the court, the rule being
merely permissive, and the discrétion to be exeroised upon princlples df justice
toward the défendant. " Ame nd ménts are al ways limited by duo eonaideralion
of the rights of the opposite party, and where, by the amendment, he would be
prejudiced, it is not allowed."
In Admiralty. An exception to amended libel.
Richard De Gray, for libelant.
Charles B. Singleton, R. H. Browne, and B. F. Choate, for claimant.
BiLLiNGs, J. The vessel had been seized under the libel and re-
leased on a stipulation when the amended libel was filed. The orig-
inal libel was for wages as enginèer on a voyage from Cincinnati to
the port oE New Orléans. The amended libel seeks to recover for
wages commencing at the time ■when the voyage is asserted in thé
original libel to hâve begun, and at the same rate, namely, at the rate
of |125 per month, for employment down to Dècember 5th, under a
contract whereby libelant agreed to dévote his time, and did dévote
his titne, first, to an attempt to purchase for the party, who subse-
quently owned and now owns the Carozal, and later to the supérin-
tendence of the building, for the présent owner, the said Carozal. The
further allégations in the amended libel are that af ter Decetïibôr 5th
the libelant was employed as enginèer, making the trip l'rom Cincin-
nati to New Orléans. The fact that the propérty has been releaséd
on bail would not preclude a proper amendment of the libel; the prin-
ciple being that the person bailing propérty is considered as holding
it subject to ail légal dispositions by the court. The Harmony,
1 Gall. 123, 125; Rex v, Rolland, 4 Term R. é57, 458; and Dunlap,
Adm. Pr. (marginal paging,) 214; Newell v. Norton, 3 Wall. 266.
The question, then, is to be determined by the gênerai rules control-
ling amendments in pleading in admiralty. The cause of action is
clearly a new one, distinct from that set out in the original libel. The
weight of authority is that new counts in revenue and instance causes
may be added, but only under particular circûmstances. Sackett v.
Thompson, 2 Johus. 206 ; The Harmony, 1 Gall. 124. In Petre v.
Craft, 4 East, 433, the court allowed the amendment on the ground
that the amendment was of such a nature that the plaintiff could
not thereby introduce any new fact in proof not originally within his
contemplation; and in Newell v. Norton, supra, the court sanctioned
the allowance of the amendment because it neither increased nor
diminished the liability of the sureties upon the bond. I do not un-
iReported by Joseph P. Horaoi-, Esq., of the New Orléans bar.
656 FESEBAL BEFOSTER.
derstand that the court meant liability in amount, but liability intrin-
sically. For, though the amount of this liability might not be in-
creased, the substitution of another ground of recovery would sub-
stantially vary it.
There is another circumstance which should be considered. The
original libel is for mariner's wages solely, and in such class of suits the
libelant is dispensed with giving a stipulation with surety for costs.
In the libel as amended the cause of action, if it be within the admi-
raltyjurisdiction, présents such a cause of action as would requirethe
actor to give surety for costs. To allow such amendaient would be
to allow a complaining party to dérive an advantage by the amend-
ment which he could not bave had in an original suit. Admiralty
rule 24, prescribed by the suprême court, is not an arbitraryruie. It
does not mean that in every case counts presenting new causes of ac-
tion may under ail circumstances be added, but leaves the matter to
the discrétion of the court, the rule being merely permissive, and the
discrétion to be exercised upon principles of justice towards the de-
fendant. The meaning was not to abrogate or qualify the universal
rule of pleading, as stated by Stephen in his work on Pleading, at page
75, that "amendments are, however, always limited by due considéra-
tion of the rights of the opposite party ; and where, by the amendment
he would be prejudiced, it is not allowed." In the system of plead-
ing in the admiralty, the rules of the common-law courts, so far as they
are technical, are relaxed, but, so far as they are founded upon jus-
tice between the parties, are unabated.
Considering the case with référence to both the claimant and sure-
ties, I am of the opinion that the exception should be maintained,
and the amended libel is accordingly dismissed.
HULL V. DIIiLS. 657
HtJLL V. DiLLS.
(Circuit Court, D. Indiana. February 26, 1884.)
JuHisDicTioN op United Btatbs CorsTs — How Affectbd bt Statu Laws.
A bill of complaint having been liled by a ward against his guardian in the
United States circuit court for Indiana, it was coatended by tlie défense that,
according to the lawg of Indiana, in matters of probate, relief could be granted
only by tlie courts in wliicli the proceedings were had , and that thèse could not
be made subject to any col.ateral proceedings. Udd, that the equity courts of
the United States are not ailected by the restrictions laid by the several statea
upon their own equity courts.
On Demurrer to Bill.
Sullivan é Jones, W. L. Penfield, and E. Callàhan, for complainant.
Coombs, Bell é Morris, for défendant.
Woods, J. The bill, stated generally, charges that the défendant was
appointed guardian of the complainant by the probate court of De Kalb
county, Indiana, and that, as such guardian, he wrongfuUy and fraudu-
lently sold real estate of the complainant for less than its value, and
af terwards, in like manner, procured an order of the court for the invest-
ment of the proceeds of the sale in other lands, owned by the défend-
ant, at and for a sum greatly exceeding the value of the land, and
thereupon conveyed the land to the plaintiff, and procured the ap-
proval of the court to the conveyance, by concealing from the court
the fact that the land belonged the guardian himself ; that the guard-
ian had made false and fraudulent reports, and had been guilty of
other ofiScial delinquencies specified, (but which need not be particu-
larized hère;) and that in October, 1878, the défendant filed with the
court his résignation as guardian, concerning which the entry of rec-
ord made at the time is of the ténor following, to-wit: "Which rés-
ignation is accepted." That plaintiff became of lawful âge in De-
cember, 1882, and on the next day after attaining his majority,
executed and tendered to the défendant a reconveyance by quitclaim
deed of said land, and demanded an aecounting of said guardianship,
ail of which the défendant refused. The prayerof the bill is "to hâve
the said record and proceedings examined in this court and cor-
rected or revised ; annulled, canceled, and set aside ; " that the order
authorizing such sale may be reviewed and wholly reversed ; and that
the plaintiff berestored to hisrights as if the sale had not been made;
and, if this cannot be done, "that an account may be taken of the
matters and things charged,"etc.; and for gênerai relief.
The objections made to the bill is that it shows a case wherein re-
lief should be sought, and can be granted, only in the circuit court of
De Kalb county, Indiana, — the court which is clothed with probate
powers, and in which the proceedings complained of were had. In
support of this view, counsel for the défendant insist, and the fact
cannot be denied, that the suprême court of Indiana bas repeatealy
V.19,no.l0— 42
658 rECBEAL HBPOETEB.
decided that the orders of the probate courts, whether final or înter-
locutory, are binding until, set aside; that they cannot be attaeked
coUaterally ; and that they can be set aside or corrected only in the
partioular court which made them; that a bill in equity is a collat-
éral attack, and cannot be maintained in any other court. Among
the cases cited are Spaulding v. Baldwin, 31 Ind. 376 ; Barnes v. Bart-
lett, 47 Ind. 98; Holland v. State ex rel. 48 Ind. 391; Sanders v.
Loy, 61 Ind. 298; Parsons v. Milford, 67 Ind. 489; Briscoe v. John-
son, 73 Ind. 573 ; Candy v. Hanmore, 76 Ind. 125 ; Jennison v. Hap-
good, 7 Pick. 1; Paine v. Stone, 10 Pick. 75; Negley v. Gard, 20
Ohio, 310; Goodrich v. Thompson, é Day, 215; State v. Rolland, 23
Mo, 95 ; Short v. Johnson, 25 111. 489; Iverson v. Loberg, 26 111. 180;
Freem. Judgm. §§ 319a, 608.
Counsel for the complainant, on the contrary, contend that, not-
withstanding the statutes whieh confer probate jurisdiction upon par-
tioular courts, courts of equity continue to bave jurisdiction in such
cases, and consequently that an original bill of review may be main-
tained in any court of gênerai equity powers, state or national, which
can obtain jurisdiction of the parties; and cite Bond v. Locktoocd, 33
111. 212; Wickizer v. Cook, 85 111. 68; Fogarty v. Ream, 100 111. 366;
Jones & C. Pr. p. 270, § 6; Eorer, Jud. Sales, p. 125, § 317; 2
Story, Eq. § 1339.
Whatever may be the rule in and in respect to the state courts,
the jurisdiction of the fédéral courts, in such cases, if the parties be
citizens of différent states, seems to hâve been distinctly declared
and upbeld. In Payne v. Hook, 7 Wall. 425, a case wherein the bill
sought "to open the settlements with the probate court as fraudu-
lent, and to cancel the receipt and transfer from the complainant
to the administrator because obtained by false représentations," the
proposition was advanced "that a fédéral court of chancery sitting
in Missouri will not enforce demands against, an administrator or
exécuter, if the state court, having gênerai chancery powers, could
not enforce similar demands." In response to this, the suprême
court, by Davis, J., says: "If this position could be maintained, an
important part of the jurisdiction conferred on the fédéral courts by
the constitution and laws of congress would be abrogated. But this
objection to the jurisdiction of the fédéral tribunals bas been here-
tofore presented to this court and overruled."
"We hâve repeatedly held 'that the jurisdiction of the courts of the
United States cannot be impaired by the laws of the states, which pre-
Bcribe the modes of redress in their courts, or which regulate the dis-
tribution of their judicial power.' If légal remédies are sometimes
modified to suit the changes in the laws of the states, and the practice
of their courts, it is not so with équitable. The equity jurisdiction
conferred on the federaL courts is the same that the high court of
chancery in England possesses; is subject to neither limitation nor re-
straint by state législation; and is uniform throughout the différent
OAETEB p. CITÏ OF SEW OKLEANS. 659
states of tlie Union. Hyde v. Stone, 20 How. 175; Union Bcmk v.
Jolly'sAdm'rs, 18 How. 603; Suydam v. Broadnax, 14 Pet. 67." See,
also, Fiske v. HUls, 11 Biss. 294; S. C. 12 Ped. Ebp. 872; CorneU
V. Williams, 20 Wall. 249.
This bill shows that the complainant is a citizen and résident of
Illinois, and the respondent of Indiana, and, except in the respect al-
ready considered, its sufficiency has not been questioned. The dé-
marrer is therefore overruled.
Cabter v. City of New Okleans.'
(Circuit Court, E. D. Louisiana.' February, 1884.)
1. Interventions m Equitt Cases.
Third peraons may be permitted to intervene for their rights in equity cases,
if those rights are to be aiïected, and if at tiie liearing the court would be com-
pelled to notice their absence, and order the case to stand over until they -were
brought in, or their rights were protected. 1 Daniell, Ch. 287, note 2 ; Story,
Eq. PI. i 220.
2. iKJUNcTTojî— Trust Fund.
Acreditor of a trust fund is not entitled to an absolute injunetion restraining
the trustée from paying over any part of the fund, absolutely, but only from
malclng any payment until the complaining créditer is paid.
On Motion of Intervenors to Quash Injunction, and on motion of
complainant to strike ont the interventions.
Thomas J. Semmes, J. C. Payne, and Charles Carroll, for complain-
ant.
Joseph P. Hornor and Francis W. Baker, for intervenors.
Charles F. Buck, City Atty., for défendant.
Pabdeb, j. This is a suit by a créditer to secure payment from
an alleged trust fund, in préférence to other creditors, over whom
priority is claimed. The fund is not enough to pay ail the claims.
The intervenors are some of the other creditors, over whom priority
is claimed. If their rights are to be affected they are necessary par-
ties. At the hearing, if their rights would be lost by a decree, the
court would be compelled to notice their absence, and order the case
to stand over until they were brought in, or their rights were pro-
tected. 1 Daniell, Ch. 287, note 2; Story, Eq. PI. § 220. As they
are hère of their own motion, and as no decree can be rendered with-
out them, and as the court can compel the complainant to bring them
in, I see no impropriety in permitting the interventions to remain.
The motion to strike oflf the interventions is therefore denied.
The injunction pendente is warranted by the allégations of the bill,
but it apparently goes further than is necessary to protect complain-
iReported by Joseph P. Hornor, Esq, of the New Orléans bar.
660 FEDERAL REPOETER.
ant's rights. If he ia paid in fuU, his interest ceases, and he cannot
complain. The injunction will, therefore, be modified so as only to
lestrain the défendants from paying other claims out of the fund in
question until the complainant is paid the amount of his demands, and
this modification will be effected by inserting in the injunction, as set
forth in the transeript, page 36, in the tenth line from the bottom,
after the word "until," and before the word "ordinances," the words
"the demands of the complainant arising under."
Soliciter for défendant will see that the proper order is taken.
Western Unïon Tel. Go. v. Baltimore & 0. Tel. Co. and others.
iCircuU Court S. D. New Tork. March 28, 1884.)
Raii.road is a Post-Road, and as sdch Amenable to Act of Cottgresb, July
24, 1866.
A railroad is, under the statutes of the United States, a post-road, and ac-
cordingly the act of congress of July 24, 1866, giving to ail telegraph com-
panies alike the right to construct, maintain, and operate lines along ail post-
roads of the Uniied States, is paramount cver any agreement made by a railroad
Company securing to a telegraph Company the sole use of ita line of road for
its wirea.
In Equity.
Wager Swayne and Burton N. Harrison, for Western Union Tel. Co.
Dorsheimer, Bacon é Steelc, for Baltimore & 0. Tel. Co. and Nat.
Tel. Co.
P. B. McLennan, for N. Y., W. S. & B. Ey.
Wallace, J. The complainant moves for a preliminary injunction
to restrain the two telegraph companies défendants from erecting
and operating the telegraph line upon the land of the défendant rail-
way Company, and to enjoin the railway company from permitting
either of the défendant telegraph companies to use its right of way
for such purpose, and from violating any of the provisions of an
agreement entered into between the complainants and the Jersey City
& Albany Eailway Company on the seventh day of January, 1880.
The faets are thèse: On the seventh day of January, 1880, the
complainant entered into a written agreement with the Jersey City &
Albany Railway Company, which, among other things, contained the
foUowing clause :
"The railway company, ao far as it legally may, hereby grants and agrées
to assure to the telegraph company an exclusive right of way on and along the
line and lands of the railway company, and on any extension or branches
thereof , for the construction and use of lines of pôles aixd wires for commer-
cial or public uses or business, with the right to put up from timeto time
such additional wires, or lines of pôles and wires, as the telegraph company
may deem expédient; and the said railway further agrées ♦ * * that it
■WB8TEBN nNION TEL. CO. V. BALTIMOEB <fc 0. TEL. 00. 661
will not f uvnish for any competing Une any facilities or assistance that it may
lawfully withhold."
At the time this agreement was entered into.the Jersey City & Al-
bany Eaiiway Company was constructing a Une of railroad from a
point ou or near the Hudson river, in the county of Hudson, in the
State of New Jersey, and thence northerly to a point at or near Fort
Montgomery, on the Hudson river, those points being the termini of
its route, as provided in its articles of association. It appears by the
affidavits that the complainant constructed a telegraph Une of about
26 miles in length, along the right of way of the railroad company,
between Richfield Junction, New Jersey, and Haverstraw, New York,
which w^s carried into and connected with the several stations of the
railway ; which line was operated by the complainant under its con-
tract with the Jersey City & Albany Eaiiway Company. In March,
1880, the North Eiver Eaiiway was incorporated and organized, and
in May, 1881, the Jersey City & Albany Eaiiway Company Consol-
idated with this corporation. In February, 1880, the défendant the
New York, West Shore & Biififalo Railway Company was incorporated
and organized, and in June foUowing Consolidated with the North
Eivér Eaiiway Company, and by the agreement of consolidation suc-
ceeded to and assumed ail the obligations of the Jersey City & Al-
bany Eaiiway Company to the complainant. The bill allèges that
the défendant railway company is now seeking to disaf&rm and vio-
late tbè obligations of the contract of January 7, 1880, and is allow-
ing and assisting the défendant telegraph companies to constructand
operate over its right of way a line of telegraph to be operated in
compétition with any line which may be constructed by the complain-
ant, and that the défendant telegraph companies are proceeding to
construct and erect their competing line upon the lauds of the rail-
way company without the consent oE the complainant, and without
acquiring any right of way by condemnation and compensation to
the complainants therefor.
It is claimed on the part of the complainant that along certain por-
tions of the lands of thie railway company, owing to the physical char-
acteristics of the route, there is not sufficient room for more telegraph
Unes than are or may be necessary for the convenient opérations of
the complainant's business. The proofs do not sustain this contention.
Without considering the question whether the railway of the New
York, West Shore & Buffalo Cotapany is an extension of the Jersey
City & Albany Eaiiway Comparij', the case may be disposed' of upon
other grounds. If it was the purpose of the agreement to enable the
complainant to exolude ail other telegraph companies from acquiring
a right of way for constructing and- operating their Unes over the lands
of the railway compa,hy, the agreement was void as against public
poUcy, and in contravention of the act of congress of July 24, 1866.
That act authorized any telegraph company then organized, or thére-
after to be organized, under the laws of any state of the CJnion, to
662 FEDERAIi B|:P0BTE9>
construct, maintain, and operate lines of telegraph over and along
any poat-road of the United States. The railroad hère, and ail rail-
roads in the United States, are suoh post-roads; the act of congresa
applies to them, and its provisions are operative and suprême as a
legitimate régulation of commercial intercourse among the states.
This was deeided by the suprême court in Pensaœla Tel. Co. v. West-
ern Union Tel. Co. 96 U. S. 1. It was not held in that case that a
telegraph company could aoquire a right of way over a railroad with-
out the consent of the owner of the railroad, or even that the act
gave to telegraph eompanies the power to acquire suoh a right of way
by çompulsory proceedings, upon due compensation to the owner; and
the contrary was plainly intimated. But the act was considered and
espounded as intended, and effectuai, to deny to any one telegraph
company the power to acquire any such easement in the lands of a
railroad for télégraphie facilities as would exclude other eompanies
from obtaining like privilèges, and as a déclaration by congress of a
policy in the interests of the public and of the govemment which
was reasonable and lawful. Since that décision it has been adjudged
in two cases in the circuit courts of the United States that a railroad
company cannot grant to a telegraph company the exclusive right to
establish a line over its right of way. Western Union Tel, Co. v.
American Union Tel. Go. 9 Biss. 72; Western Union Tel, Co, v. Bur-
lington é S. Ry. Co, 11 Fbd. Eep. 1, See, also. Western Union Tel,
Co.v. American Union Tel. Co. 65 Gra. 160. Whether an agreement
of this kind would not be void as intended to strangle compétition,
and therefore as being in restraint of trade and obuoxious to public
policy, irrespective of the act of congress, is a question which it is not
neeessary to discuss; it suffices that such an agreement is void be-
cause contrary to the policy declared by congress.
The agreement hère is to be interpreted so as, if possible, to give
it some efficacy and validity. Its language is carefully chosen so as
to permit it to be thus interpreted. The railway company assumes
to grant only "so far as it legally may." Were it not for this quali-
fication the grant would be void. The complainant can take nothing
by the agreement beyond such an easement as is neeessary for its
legitimate use in constructing and operating its lines. To this ex-
tent it could acquire the exclusive right. It could not acquire the
right to dictate to other telegraph eompanies upon what terms they
may be permitted to construct and operate competing Unes. Nor
could the railway company put it out of its own power to permit any
telegraph company to enjoy the privilèges given by the act of con-
gress, by a cession of that power to the complainant. This would be
as obnoxious to the spirit and meaning of the statute as a grant ex-
cluding other telegraph eompanies from the lands of the railway. It
would be doing indirectly what cannot be done directly. It would
lodge the power with a f avored company to impose such onerous terms
upon other eompanies as to preclude compétition.
BRASSEY V. NEW TGEK & N. E. B. 00. 663*
If it were impracticable for tbe défendant telegraph eompanies to
construct their Unes upon the lands of the railroad without invad-
ing the complainant's easement by using its pôles or otherwise, they
would be obliged to obtain the consent of tbe complainant, or resort
to such proceedings as are autborized by tbe laws of tbe state under
tbe power of eminent domain. Sucb is net tbe case exhibited by tbe
record, and tbe railway company consents. As to thèse défendants,
tberefore, tbe motion for an injunction is denied.
Tbe complainant allèges tbat tbe railway company bas removed
some of the old line of pôles and wires erected by tbe complainant
between Eicbfield Jonction and Haverstraw, with tbe intention of
preventing complainant from operating its line. Tbis is denied by
tbe railway company. SufiÊcient appears, bowever, to indicate tbat
the railroad company is hostile to the complainant and in sympatby
with tbe défendant telegrapb eompanies, and, in view of ail tbe cir-
cumstances, it is deemed reasopable tbat tbe complainant be protected
during tbe pendency of tbe suit in its possession of the line it bas
actually constructed. To tbis extent an injunction will be granted as
against tbe railway company.
The agreement between tbe complainant and tbe predecessor of the
présent railway company contains various stipulations for the benefit
of the complainant, wbioh tbe complainant insists tbe railway com-
pany proposes to violate, and sbould be enjoined from violating. One
of thèse stipulations is tbat tbe railway company sball furnish office-
room, light, and fuel, free of charge, to tbe complainant wbenever tbe
complainant elects to establisb an office at a station of the railway
company. As to ail thèse stipulations, it is sufficient to say tbat tbe
complainant bas an adéquate remedy at lawfor anybreacb tbat may
take place. Althougb equityinterferes byinjunotion to restrain breaoh
of agreement wben the case isone in whicb a decree for a spécifie
performance migbt be made, as also in some cases to restrain the
breach of négative covenants, the ground of the jurisdiction is tbat
compensation in damages will not afford redress to tbe complaining
party. Tbis is not such a case.
Bbassbt V. New York & N. E. E. Co. and othera
{Oirouit Court, D. Gonneetieut. March 7, 1884. .
1. COEPORATION— ReCEIVEESHII'— "WheN PbOPBR.
An inSolvent railioad corporation may, in the discrétion of (hè cotivt, upon
a l)ill for an injunction and a receivership, be put in tlie hands of a receiver
whenever the welfare of the various interests clearly requires it, evcn though
ho default bas actually beea made by the corporation in its obligations to the
petitioner, but a default is imminent and manifest, and the corporation ia in
péril of a breaking up and destruction of its business.
664 FEDEBAIi SEPOBTEB.
2. Same — Collusion, -whbtt Fraudtjieiit.
The mère concurrence of the directors, in an attempt to secure the «ppoint-
ment of a receiver, does not amount to fraudulent colliision, ualess they design
some injury to the company or its creditors.
3. Finances dp the New Tork and New Enoland RAn^EOAD.
The financial condition of the New York & New England Kaiiroad Company
reviewed, and held to warrant the appointment of a receiver.
Motion of Jonas H. French and others to dissolve order appoint-
ing receiver, etc.
Shipman, J. The petitioners hâve put their case upon the ground
that neither the allégations of the original bill nor the facts in regard
to the New York & New England Railroad Company existing at the
time of the appointment of the receiver justified the order, but that,
on the contrary, the institution of the suit and the procarement of
tbe vote of the directors at a spécial meeting assenting to the pro-
posed appointment were a plan on the part of sundry directors and
the président to injure the corporation, perhaps for selfish purposes.
On the other hand, the corporation and the trustées of the second
mortgage hâve placed their opposition to the revocation of the order
in part upon the fact that the présent acknowledged financial condi-
tion of tbe corporation demands a receivership, and that the taking
of the road but of the hands of a receiver, in view of the pendency of
three pétitions before three législatures for additional législative au-
thority to raise money, (the pétitions being based upon the financial
necessities of the corporation,) would put the corporation in the midst
of perplexities and dangers from which it is now relieved, and would
imperil the success of any attempt to place the corporation in a con-
dition of solvency.
It is of course apparent that, in their opposition to a revocation of
the order, the trustées of the second-mortgage bonds and the corpo-
ration hâve a great leverage, from the fact that the business commu-
nity, the shippers of freight, and the creditors of the corporation are
now perfectly aware that the company bas not been able to pay its
debts, bas lived by borrowing and by the grâce of a portion of its
creditors, and from a natural fear of the danger which might resuit
from putting the corporation back into a condition where it might
not be able either to serve the public or to help itself. The posi-
tion which the commonwealth of Massachusetts, by virtue of its
ownership of about seventeen twenty-eighths of the whole number of
outstanding second-mortgage bonds, has taken in regard to the re-
ceivership, is also, in this part of the case, entitled to much respect.
But it is not my purpose to dispose of this motion upon such consid-
érations. The petitioners hâve given voice to their suspicions, not to
say their accusations, that this receivership was the resuit of a plan
to injure either the corporation or the holders of its securities, and
that the suit was coUusive between the parties, in the sensé of a fraud-
ulent collusion to deceive the court, and thereby to accomplish selfish
BBâSSËÏ V. NEW lOBE & S. E. B. CO. 665
and improper purposes. If this is true it is the dufy of the court
either to set aside the order or to remove the receiver,
I, therefore, propose briefly to examine into thefacts, and seewhether
there was or was not a necessity, arising out of the financial condition
and circumstances of the road, for the appointment of a receiver, and
to look into the validity of the charges or suspicions of coUusive fraud,
recognizing the fact that the changed position and relations of the
active petitioners in regard to the controUing management of the cor-
poration resulting from the élection of directors in the early part of
Deeember, might naturally engender suspicions in their minds either
of the good faith or of the propriety of the conduct of the new board,
although those suspicions might not be well founded. And I re-ex-
amine the condition of things on Deeember 31, 1883, with référence to
a receivership, with the more willingness because it bas been stated
hère that it was said in another court that probably, if I had known
ail the facts, the order would not bave been granted.
Previous to the annual élection of directors of the corporation, Lee,
Higginson & Co, gave public notice, by advertieement, that an attempt
would be made to elect a new and différent board, intimating plainly
a dissatisfaction with the policy of the existing management, and so-
licited the proxies of the stockholders for that purpose. This attempt
was openly and plainly proclaimed, and resulted in dropping from
the board Gen. Wilson, the former président, and Messrs. Grant and
Cannon, who apparently were efficient financial friends of the exist-
ing management. Col. French, who was also on friendly terms with
thèse gentleman, was re-elected, and Mr. Kingsbury, a member of the
board for many years, was also re-elected. Whether others of the
old board were re-elected I do not know.
The report of the retiring président showed that from various
causes the road had not, during the year ending September 30, 1883,
earned its fixed charges. Promptly, with the announcement of the
probable or actual resuit of the élection, Mr. Cannon and the firm of
which Mr. Grant is a member demanded and received payment of
demand notes against the company amounting to $104,000. I do
not speak of this action as unnatural or improper, but simply as one
of the financial facts in the case. The retiring directors probably
thought it not improper that they should no longer be obliged to ad-
dress themselves to the work of providing means to sustain the crédit
and pay the overdue debts of the company.
The new board, as appears both from the officiai record of their
action, and as appeared more in détail upon the original hearing,
found themselves compelled to turn early and prompt attention to
this subject, and found the company in unexpected straits for money.
The pressing debts were apparently larger than they had anticipated.
No money was in the treasury to meet the interest on the first-mort-
gage bonds, maturing on January Ist. There was no money to pay
the old debts due to Connecting roads. Money could not be spared
66G FEDEEAL EEPOBTEE.
to pay maturing notes, except under supposed compulsion. The
directors set tbemselves to the task of borrowing money to meet
pressing obligations. It was estimated that some $800,000 were
needed, and but about |300,000 eould be promised. At this point,
in reply to a letter from Mr. Clark, was received a letter from the
président of the Erie Eailroad Company, in which Mr. Jewett stated
that he desired payment of $90,000 of the debt of $190,000 due that
Company, and, that $100,000 might remain for a time, Payment of
the January interest could neither be made from the receipts of the
New York (Ss New England road, nor could the money be borrowed.
A plan was projected and finally carried into effect that the January
coupons should be cashed or bought by money furnished by the per-
sons interested in the road, and held until the succeeding July, and
that $10,000 should be furnished by the compauyin considération of
this_ forbearance and as commission for the services of the bank,
which was to receive and disburse the mouey. Notice to ail creditors
and the public was thus giveu of the company's inability eithei; to
pay their interest or to borrow the money with which to pay it, and
that the company was without either money or adéquate crédit. For
purposeg of the présent inquiry, an examination of the causes which
had brought about this resuit would neither be gracious nor useful,
neither hâve I sufficiept data to state them with accuracy.
The fact that thç corporation was at a standstill, so far as the pay-
ment of its debts and obligations was concerned, existed. The fact
that no duty reeited upon the directors or upon the stockholders to
lend money upon unseçured notes and thus to meet thèse obligations
seems to me to be plain. The directors owed two duties — one to the
public, that this road should be kept in running condition so that it
could serve the public ; the other to the stockholders and to the bond-
holders, that if possible the property might be kept intact and pre-
served, so that finally unseçured and secured creditors might be paid
and the stock might be saved, and they were ealled upon to take ail
proper measures to discharge thèse two duties. At this time, from
the twenty-seventh to the thirty-first of December, the question of
temporary relief by a receivership from the péril in which they found
the corporation undoubtedly presented itself to the minds of the di-
rectors. It would be natural that the idea of protection to the prop-
erty and benefit to the public througb such an instrumentality should
bave suggested itself. On the thirty-first of December the agent of
the syndicate which had agreed to take second-mortgage bonds and
thus provide the means for the payment of the expenses of double-
tracking the road, the proceeds of the bonds to be used only for work
already done, refused to answer the call which was made upon him
to take and pay for 170 bonds. I do not propose to considor the
propriety or impropriety of the refusai, but, on the eontrary, ta as-
sume that the agent took the proper course. It is a fact in the case,
and a fact which, taken with the occurrences of that day, led the
BRASSEÏ V. NEW ÏOBK & N. K. B. 00. , 667
président to believe that not only no more bonds would be taken, and
therefore that the double-tracking of the road must be stopped, but
also that Messrs. Cannon, Grant, and Frenoh -were planning them-
selves to procure the appointment of a receiver who would act in
harmony with them and in hostility to the new policy of the new
board, if that policy should prove to be a radical departure from the
System of the old board.
In pursuance of authority whioh had been previously given by the
board to call spécial meetings, the président called a meeting of his
board at Hartford on the evening of December 31st, to act upon the
question of agreeing or consenting to the appointment of a receiver.
Messrs. Clark, Nickerson, Higginson, and French left Boston on the
same train, and the silence of the three first-named gentlemen in re-
ply to Col. French's questions in regard to the proposed meeting is
seriously criticized. The answer to thèse criticisims is that they hon-
estly believed that if he was informed of the object before the hour
of meeting he would take prompt and effectuai measures to eommuni-
cate with his friends and obtain a hostile receivership in the courts
of New York. Their silence and expédition led him to distrust their
good faith. This mutual distrust wae the cause of the subséquent
excitement which attended the issuing of the order. Messrs. French,
Cannon, and Grant ail deny under oath that the suspicions were well
founded or that they had any knowledge of or privity in such a de-
sign, and there is no évidence before me which casts doubt upon the
truth of the déniai. Neither is there any more room for doubt that
the other directors really believed that they were only endeavoring
to forestall similar action on the part of the gentlemen whom I hâve
named. When the meeting was held a quorum of seven was prés-
ent and a vote approving of a receivership was carried by a vote of
five to two. This action was at a meeting held on January 7th, de-
liberately approved by a large majority of ail the directors. At
the hearing on the evening of the first meeting Col. French urgently
opposed the granting of the order. The case resolved itself into this :
The inability of the corporation to pay its coupons and its other debts
was admitted. The expédient which had been adopted for the pay-
ment of the coupons was explained. The plan which ail parties then
agreed was the only feasible plan by which to raise money, was to
obtain the requisite permission from the législatures of Massachu-
setts, Conneeticut, and Ehode Islaud, and also from the requisite
numberof theexisting second-mortgage bondholders, to issue second-
mortgage bonds in payment of the floating debt — a proceeding which
would evidently require time and care. Col. French was of the opin-
ion that no danger would arise from attachments, or cessation of busi-
ness, from Connecting roads, or from any other adverse causes, while
the applications were pending. The other gentlemen thought that
the corporation would be put into great hazard as soon as the knowl-
edge of their actnal inability to pay their January interest Was known,
668 FSBEBAL BEFOBTEa.
and that the announcement of this faet -woulcl be a signal for the
commencement of hostilities. Mr. Kingsbury, the trustée of the sec-
ond mortgage, who resided in Connecticut, and who had long been tt
director of the road, and had given much time and thought to the af
fairs of the company, reluctantly assented to the necessity of a re-
ceivership. I believed then, and I still think, that the condition of the
corporation was such that there was not only no safety, but that there
was absolute and imminent péril to ail the interests of stockholders,
bondholders, and ereditors if a reeeivership should be refased, and
that the welfare of ail the varions interests required that the corpora-
tion should temporarily be placed in a position where hostile arma
could not attack it. The corporation is now enabled actively and
efficiently to discharge its obligations tothe public from the fact that
it is under protection. Subséquent events simply confirm the con-
clusion to which I then came. It could not even now do business,
unless it had been permitted to use some of Us receipts to pay a part
of the outstanding debts due to Connecting roads. The receiver bas
been seeking from the Connecticut législature the remission of taxes
which are a first lien upon the Connecticut real estate of the com-
pany. A reeeivership by some court was inévitable.
The question still remains to be considered, was the institution
of this suit, and the efforts on the part of the directors to promote it,
an attempted f raud upon any one ? I hâve carefuUy liatened to the
facts and suggestions and inferences which hâve been stated by the
counsel for the petitioners, and I can discover no actual trace of a
désire to injure the property or securities, or the honest and true
character of the company. I see circumstances which a mind pre-
disposed to suspicion can easily fasten upon as indicative of a sinis-
ter and indirect motive. The petitioners were carrying a large
amount of the second-mortgage bonds, and would naturally distrust
action which would depreciate the market value of thèse securities ;
but when the circumstances are looked at in the light of other exist-
ing facts, the idea of attempted fraud disappears. I am at a loss to
find where the fraud exists when the pecuniary condition of the com-
pany is reallyunderstood. If the directors had in mind the wrecking
of the road, they could bave done it easily by not favoring a reeeiver-
ship. At the time when the original order was granted, the substan-
tial facts, which hâve been stated, were apparent, except that I do not
now recollect that the refusai of the syndicate to take the bonds, or
the payment of the notes to Cannon and Grant & Co., were adverted
to, and except that the relations between some of the directors aiso
favored a reeeivership, and some of the members of the old board
were not clearly understood by me. The facts in regard to the pecu-
niary condition of the company, and the impossibility of any immé-
diate ability to obtain more money, and thereby gain relief, were
clearly perceived. Upon this hearing the conduct of the receiver,
since bis appointment, in closing bis fast through freight contrâct
BBA.6BEY V. NEW YORK <fc N. E. B. 00. 669
with the New York, Lake Erie & Western Eailroad Company, and his
printed statements or reports in regard to the financial condition of
the Company, hâve been criticised. If the traffic arrangement re-
sulted, through too low rates to the New York & New England road, in
constant pecuniary loss to the company, I ean see no propriety in
continuing the contract, and in continued pecuniary losses. In re-
gard to his financial exhibit, I hâve heard no adéquate reason to
doubt its truth, and it was certainly his duty to inform the stock-
holders and the bondholders of the exact condition of the company.
Were the allégations of the bill sufficient to justify the appoint-
ment of a receiver ? The petitioner's position is that, ordinarily, to
justify suob an appointment, a case must be pending in which other
and principal relief is sought — as to foreelose a mortgage. It is true
that in gênerai a receivership is ancillary or incidental to the main
purpose of the bill, but it does not follow that where a case is pre-
sented which demanda the relief which can be best given by a re-
ceivership, such relief must be refused, because the time bas not
arrived when other substantial relief can be asked. For example, al-
though as a rule, a mortgagee cannot ask for relief until his mort-
gage debt bas become due, he can go into a court of equity before
that time has arrived and ask for an injunction and a receiver to
prevent the subject-matter of his mortgage from being impaired and
wasted. As was said in Long Dock Co. v. Mallery, 12 N. J. Eq. 431 :
"The power of the court to préserve the pledge from destruction, and to
answer to the exigeney of the mortgage, is undoubted. * * * if the bill
Bhows a case for an injunction and a receiver, the exercise of the power is
called for, although the time of payment, set in the mortgage, has not corne
unless the equity of the bill is met by the answer. "
This bill alleged the existence of the corporation and the first and
second mortgage bonds, and of the actual inability of the road to pay
its interest, to become due on January Ist; the existence of the float-
ing debt, and its inability to pay that; the intention of some of the
creditors to attach the mortgaged property; the péril to the road
arising from anticipated attachments of the property covered by
the second mortgage; and the loss of and breaking up of the busi-
ness of the road from its inability to pay Connecting Unes ; and its
conséquent inability to pay the interest due on Pobruary Ist. In brief,
it alleged the insolvency of the road, though not in ternis, and the
danger and hazard of serious injury to the revenues of the com-
pany, unless suits were prohibited, and those who did business with
it were assured that its current expenses were to be paid. Thosé al-
légations were admitted both by the corporation and by the trustées
of the second mortgage. I am of the opinion that when a railroad
corporation, with its well-known obligations to the public, has become
entirely insolvent, and unable to pay its secured debts, unable to pay
its floating debt, and unable to pay the sums due its Connecting lines,
unable to borrow money, and in péril of the breaking up and destruc-
670 FEDBEAL REPOEtEB.
tion of its business, and confesses this inability, although no default
bas as jet taken place upon the securities owned by the orator, but a
default is imminent and manifest, a case bas arisen ■wbere, upon a
bill for an injunction against attacks upon the mortgaged property,
and a receivership to protect the property of the corporation against
péril, a temporary receiver may properly and wisely be appointed.
It is next said tbat this was a case of collusion between the orator
and the railroad corporation. There is no claim tbat tbere was any
collusion on the part of the second-mortgage trustées. If by collusion
it is meant that the préparation for and institution of the suit were
known and desired by the directors, or some of them, in tbe belief
tbat the granting of the prayer of the bill would be prudent and wise,
then tbere was collusion. If by collusion it is meant that the institu-
tion of the suit, or its management, was marked by fraudulent design
or purpose, then there was not collusion. The complainant was the
actual ownér of five mortgage bonds. Tbey were not placed in bis
hands, and were not transferred to him fictitiously, and were not
bought by him for tbe purpose of this suit. The firm of Lee, Higgin-
Bon & Co. bad the authority to bring suit in his name, or their action
bas been ratified and approved. The railroad company consented,
prier to coming into court, to the appointment, as is frequently and
properly the course in cases of this kind. No one attacks tbe fidelity
of the second-mortgage trustées, and they also assented.
In regard to the prayer of the pétition for the removal of the re-
ceiver, no adéquate reason bas, in my opinion, been given for sucb a
course. The affidavits of the second-mortgage trustées contain a
sufficient reason why sucb a prayer should be denied.
In regard to tbe prayer of the pétition for tbe appointment of a co-
receiver, I see no reason for antagonistic receivers; and a receiver
who should be in accord with Mr. Clark would not, probably, be satis-
factory to the petitioners,
The prayer of the pétition is denied.
Shnk V. Francis and others '
Williams v. Same.'
{Circuit Court, E. D, Louisiana. February 20, 1884.
ÏNJUNCTIOIÎ.
A bill for an injunction to prevent interférence by criminal procédure wIU
lie when the parties sought to be enjoined hâve, as plaintitEs, submitted them-
selves to the court by a bill in equity as to the matter or right aflected by or
involved in the criminal procédure.
XReported hy Joseph P. Hornor, Esq., of the New Orléans bar.
UNION MUT. LIFE INS. 00. V. SÏEV£NS. 671
In Equity. On demurrer.
A. G. Brice, Joseph P. Hornor, and F. W. Baker, for complainant.
James B. Beckwith, for défendants.
BiLLiNGS, J. Thèse are bills of complaint, which are, in their gen-
eral scope, bills for an injunction to prevent interférence by criminal
procédure, The exteut to which such a bill will lie is well defined.
It is when the parties sought to be enjoined hâve, as plaintiffs, sub-
mitted themselves to the court by a bill in equity as to the matter or
right affected by or involved in the criminal procédure. In such case
the court will by a decree, affecting the parties so situated personally,
enjoin. Atty. Oen. v. Cleaver, 18 Ves. 220, 211, note a; Story, Eq.
Ju'r. § 893; Jeremy, Eq. Jur. 308, 309; and 3 Daniell, Ch. Pr. (Per-
kin's Ed. 1865,) p. 1721. Thèse cases hâve been considered upon
the ground that the parties défendant in thèse bills are in this
category. As to such parties the bills would be good, but as to no
others. The bills do not show this. The demurrers must therefore
be sustained, with leave to amend the bills, so as to set forth in a dis-
tinct form which of the parties sought to be enjoined hâve as plain-
tiffs in civil causes submitted the matter or right involved in or
affected by the criminal procédure to this court.
Pardeb, J., concure.
Union Mut. Lite Ins. Co. v. Stbvens and othera.
{District Court, N. D. Illinois. December 17, 1883.)
1. i/iKE Insubance — Lapse of Polict bt Collusion to Defeàt Interests of
Bbnbpiciart.
If the insured, even by collusion with the oompany, suffers hig poJicy to lapse,
■with the intention of securing another policy cpntaining the name of a new
peraon as Irteneficiary, the courts will not regard the second policy as à raere
continuation of the flrst.
2. Samb^Kishts of the Assuked as to the Récipient of Benbpitb of Policy.
A policy of Insurance may be considered as an inchoate oT uncompleted gift
f roni the assured to the beneflciary. The former ought to be able to make it
at will, or to change the direction of its beneflts.
3. Same— Policy in Favoh of Assubbd Himbelf— Amoiott Becombs Asshts.
If the assured himself appears by name in the policy as the beneflciary, the
money accruing on the policy at his death becomes assets in the hands of the
administrator.
In Equity.
Swett, Haskett & Bâtes, for complainant.
H. F. VaUette and Pliny B. Smith, for Mrs. Taylor.
Gary, Cody é Gary, for Mrs. Stevens.
Blodgett, j. This is a bill of interpleader filed by the complain-
ant, the Union Mutual Life Insurance Company of Maine, charging,
672 FEDBBAL BBFOBTXB.
in substance, ttat on the seventeenth of June, 1853, it issued to Sam-
uel P. Stevens a life Insurance policy for the sole use of bis wife,
Mary P. Stevens and heirs, for the sum of $1,200, which policy waa
payable on the death of the said Samuel P. Stevens, and upon which
an annual premium of $42.24 was to be paid on or before the aev-
enth day of June in every year during the continuance of said policy.
It is further charged that on the fifteenth of June, 1870, the said
Samuel P. Stevens, by an agreement with the complainant, surren-
dered the aforesaid policy to complainant and took out a new policy,
bearing the same number, for the same amount, and for the payment
of the same premium, and the agreement was that this new policy
should, in ail respects, stand in lieu of the first policy, except as to
the party to be bene&ted thereby, and that the new policy insured
the life of the said Samuel P. Stevens for the sole and separate use
and bene&t of himself. It is also charged that the said Samuel P.
Stevens bas since died testate, and that Eliza M. Stevens, executrix
of his last will and testament, bas brought suit at law in the circuit
court of the county of Du Page, in the state of Illinois, upon the last-
described policy, declaring upon the promises, undertakings, and con-
ditions of said policy, and claiming judgment as such executrix,
against complainant, for the sum of $1,200 named therein, and that
said suit is now pending in the circuit court of Du Page county. The
complainant further charges that one Mary Taylor bas brought suit
at law in the circuit court of Cook county, in this state, claiming that
the money due under the last-mentioned policy should be paid to her
as sole heir at law of said Mary P. Stevens. The bill then prays
that the défendant Eliza M. Stevens, as executrix of said Samuel P.
Stevens, and the said Mary Taylor, may interplead in this cause, and
that the court shall détermine which of said parties is entitled to the
proceeds of the said policy, and the money admitted to be due from
complainant upon the last-issued policy bas been paid into court for
the benefit of whoever the court shall détermine is entitled tbereto.
Eliza M. Stevens, as executrix, and Mary Taylor bave answered the
bill, and each claims the benefit of the money in question. The de-
fendant Mary Taylor contends that the second policy was issued by
fraudulent collusion between said Samuel P. Stevens and the com-
plainant, and is but a continuation of the original policy, which was
payable to Mary F. Stevens and heirs, and that she, the said Mary
Taylor, is the sole child and heir at law of the said Mary F. Stevens.
The case is submitted to the court upon the bill and answers, and
certain stipulated proof , including the original policy, the new policy,
and the correspondence between Samuel P. Stevens and the officers of
the complainant at about the time the second policy was issued. The
material facts, as they appear from the pleadings and the proofs sub-
mitted, are, briefly, thèse: Samuel P. Stevens took out the first pol-
icy in question, and paid the premiums regularly thereon until and
including the premium which matured in June, 1869. In June, 1856,
UNION MOT. LIFE INB. 00. 17. 8TEVENS. 678
Mary F. Stevens, the wife of Samuel P. Stevens, mentioned in said
policy, died, and at Bome subséquent date between the death of the
wife and October, 1869, Samuel P. Stevens married Eliza M. Stevens,
now the executrix of his will. In October, 1869, Samuel P. Stevens
requested that the life Insurance company would change the tenns of
the policy so that the amount of insurance thereby on his life should
be made payable to himself, and giving as his reasons that the cir-
cumstances of his family had materially changed, and others were dé-
pendent upon him who, in justice, should receive a proportion of the
policy whenever it became available. The insurance company, in
substance, replied that they could not consent to any change of the
beneficiary in the policy, but suggested that the change desired might
be brought about by Stevens forfeiting the policy by non-payment of
the premium, and then making an application for the issue of a new
policy ; and in pursuanee of this suggestion Stevens did not pay the
premium which fell due June 7, 1870, and the policy was declared
forfeited. He then applied for the issue of another policy for the
same amount and on the same premium as the first, and in pursuanee
of that application the second policy, mentioned in the bill, was is-
Bued, insuring the life of said Samuel P. Stevens for the sum of
$1,200, for the sole and separate use and benefit of himself, on the
payment of the same annual premium provided for in the first policy,
during the continuance of his life.
It further appears in the case that Samuel P. Stevens had one
child born to him by his first wife, Mary F. Stevens, who is the Mary
Taylor made a défendant in this case, and that said Mary Taylor is,
80 far as this case diseloses, the sole heir at law of the said Mary F.
Stevens. It also appears that the said Mary F. Stevens was killed
in 1856, in a railroad accident in the state of New York, and that
Samuel P. Stevens, her husband, received from the railroad company
the sum of $2,000 in settlement of the claim against the company for
having caused her death, which claim he collected as the représenta-
tive and guardian of his daughter, the said Mary Taylor, as heir of
her mother, Mary F. Stevens, but haa never paid the same to her.
It further appears that said Samuel P. Stevens, by his will, which
has been duly probated in Du Page county, in this state, provides
"that the sum of $2,000, received by him from the New York Central
Eailroad on account of the death of his former wife and the mother
of his daughter Mary, should be paid to his said daughter Mary as
soon after his decease, and from his estate, as conveniently may be,
and made the said legacy a charge and lien upon ail his estate, real
and Personal, including any money that may be due "on any life in-
surance policy, or any other property or money."
The first question made in the case is, is this a proper case for a
bill of interpleader ? Does the case show such a state of f acts as
places the complainant in the position of an innocent stakeholder
who has no interest as to which of the contending parties shall re-
v.l9,no.lO— 43
ëfé FEDEBAIi PKPORTEB.
çeive the sum of money in question? It is contended on the part of
the défendant Eliza M. Stevens that if the complainant is in danger
of having two judgments against it for the same contract, it is in
conséquence of itg own imprudent acts and mistakes, and that a
proper case for appeal to a court of equity by bill of interpleader is
not shown. It seems to me, however, from a considération, not only
of the facts in the case, but the allégations in the answers of both
défendante, that the only question is, to whom does the money due
uppn the last policy belong? Which of thèse défendants is entitled
to it? As it is clear from the proof that the insurance company
never intended to make but one contract, as far as the company and
Stevens could do, the purpose was to let the first policy lapse and
issue the second policy in place of the first. The défendant Mary
Taylor insists that the second or new policy is but a continuation of
the old policy; that the mère change of form as to the beneficiary
does not and cannot defeat her rights as the heir of her mother,
Mary F. Stevens, to reçoive the money due on the latter policy; and
it seems quite clear to me that if Mrs. Taylor is to recover anything
in this suit, it must be by reason of the correetness of the assump-
tion, that, so far as she is concerned, the new policy is but a substitu-
tion for the old, and she is still the beneficiary under it. In other
words, that the contract of June 17, 1853, is as to her the only con-
tract in force, and if she recovers at ail, it must be because she is still
entitled to the benefit of the old policy. The whole question, it seems
to me, dépends upon whether Samuel P. Stevens had the righfc to
make the change, in the beneficiary of this policy. There is no doubt
that there is a conflict of authority as to the power of a person, sit-
uated as Samuel P. Stevens was, to change the direction of the
money to accrue in this insurance on his life so as to divert it from
the person named as beneficiary in the original policy. The most
notable cases, and probably the ones most directly in point, and which
hâve been most generally followed are the cases of Pilcher v. N. Y. L
Lis. Co. 33 La. Ann. 332, and Richer v. Charter 0. L. Ins. Co. 27
Minn. 195, S. G. 6 N. W. Eep. 771, where it is held that there is a
vested right in the beneficiaries in a policy of life insurance which ren-
ders the policy irrévocable as to them. The contrary rule bas been
held in Wisconsin, Missouri, and Illinois. Clark v. Durand, 12 Wis.
248; Kerman y. Howard, 23 Wis. 108; Poster v. Gile, 50 Wis. 602;
S. G. 7 N. W. Eep. 555; Charter 0. L. Ins. Co. v. Brant, 47 Mo.
419; Baker v. Young, Id. 453; Gambs v. Cov. M. L. Ins. Co. 50 Mo.
44; Sivift v. R. P., etc., Ass'n, 96 111. 309. Where a question haa
never been decided by the suprême court of the United States, and as
to which the state authorities are conflicting, this court is at liberty
to follow such authority as is deemed most consonant with what
seems to be just and équitable. I do not intend to décide that in ail
cases where a life insurance policy bas been taken ont, payable to a
certain person as the beneficiary, it is in the power of the person
UNION MUT. LIFÉ INS. CO. V. SXBVBNS. 675
wliose life is so insured, by a subséquent agreement with the insui-
ance Company, to change the beneficiary, because it is obvions thtit
each case of that character must dépend almost wholly upon its omû
peculiar faets, and an examination of the apparently conflicting castis
upon the points raised in this case satisfies me that the appareat
conflict grows more ont of the variant facts, acted upon by the oouïts
in the différent cases, than from any essential différence in principle.
In this case, it can hardly be contended that, after the deaih of
Mary F. Stevens, her daughter, Mary, had any vested right in thcpro'
ceeds of the then existing policy, payable to her mother and heirs.
It is éven doubtful whether the true construction of the language of
that policy, describing the beneficiary, does not mean that the money
should be payable to the wife, Mary P. Stevens, and the heirs ot Sam-
uel P. Stevens ; that is, whether the words "his wife ,Mary P. Stevens,
and heirs" do not really mean his wife, Mary P. Stevens, and his
heirs; thereby making the children by the second wife, or the heirs
at law of Samuel P. Stevens, if he bas any other than his daughter,
by his first wife, equal participants in the proceeds of this policy.
But, be that as it may, the facts in this case show that Samuel P.
Stevens retained possession of this policy, and that he, and he alone,
always paid the premium; that in June, 1870, he failed to pay the
premium on the original policy, and that by its own terms it lapsed
and beoame void by sueh nou-payment; and that he subsequently
applied for and obtained this second policy. Now, it is very clear
that no one could compel him to continue to pay the premiums on
this original policy. He had a right to suspend paying the premiums
at any moment, and the policy would at once lapse by reason of
SHch failure. He was under no obligation to his daughter, now Mrs
Taylor, to continue to pay thèse premiums for her benefit. As he
says in his letter, addressed to the ofScers of this insurance company,
the circumstances of his family had so far changed that be did not
consider it right to continue paying thèse premiums for the sole ben-
efit of his daughter. It seems to me, tberefore, that he had the right
to make the arrangement with the insurance company, and it may
be assumed, for the purposes of this case, that he did arrange before
hand with the insurance company to allow the policy to lapse, with
the understanding that he was to bave a new policy issued to him,
payable to himself, for the express purpose and no other purpose than
to change the beneficiary. If Mrs. Taylor could not compel her fathei
to continue paying those premiums for the purpose of keeping th(
policy alive for her sole benefit, it seems to me very clear that he
was under no légal obligations to her to do so. In other words, it
strikes me very forcibly that this policy, at the time the change was
made, was, at most, an inchoate or uncompleted gift from Samuel P.
Stevens to his wife and heirs. He had the right to change his mind.
He was in a position where he could revoke that gift, and direct that
the money secured by this policy should go elsewbere. I can see qo
676 TEDEBAIi BKPOBTEB.
reason why he was not as muoh at liberty to change the direction of
the money -which would accrue at bis death upon this policy, as he
■was to change bis will in référence to the disposition of any of his
estate at any time preceding his death.
It is urged, however, that Mrs. Taylor bas certain équitable claims
in this f und, from the fact that, as heir of her motber, she bas never
received the amount which Samuel P. Stevens, her father, eollected
from this railroad company as compensation for the death of hia
wife, and to which the daugbter was entitled; and that in his will
Samuel P. Stevens directed the application of this insurance money
to the payment of his indebtedness to her, A sufficient reply to this,
as it seems to me, is that the money accruing on this policy, being
payable to the assured, becomes assets of his estate, and is to go
into the hands of his exécuter like any other money eollected in the
due administation of the estate, and that Mrs. Taylor's claim is to be
paid in the due course of administration, witb proper regard to the
will, under the directions of the probate court in which that estate is
being settled. It may be that the probate court can award or bas
awarded the proceeds of this policy to the widowof Samuel P. Stev-
ens. Witb that, this court, Ithink, bas notbing to do. If this money
is an asset of the estate of Samuel P. Stevens, then it is to be ap-
plied as the court charged witb the settlement of that estate shall
order.
The decree will therefore be entered ordering the payment of the
money involved in this suit to Eliza M. Stevens, exeeutrix of Samuel
P. Stevens. It is further ordered that eaob party shall pay their
iwn costs.
Evans v. State Nat. Bank.*
{Circuit Court, E. D. Louiùana. Tebruary, 18S4.)
Vbrbai. Aobeemkkts.
No verbal agreement of parties or their counsel, touching any cause pendîng
before this court, shall be deemed of any validity, or be noticed in any way by
the court, in case of dispute or disagreement.
In Equity.
J. R. Beckwith and W. R. Mills, for plaintiff.
H. B. Kelly and James McConnell, for défendant.
Thomas Gilmore, for heir s of Lapeyre.
BiLLiNGs, J. The sole question which can be considered is as to
the effect to be given to an alleged verbal agreement. It is the gên-
erai rule that sach an agreement cannot be noticed by the court.
Parker v. Root, 7 Johns. 320 ; Dubois v. Roosa, 3 Jobns. 145, and num-
1 Reported by Joseph P. Hornor, Esci- , of the New Orléans bar.
BAKLOW V. LOOMIS. 677
erous cases there cited in note, as Huff v. State, 29 Ga. 424; Reese v.
Mahoney, 21 Cal. 305; and Shippen's Lessee v. Bush, 1 Dali. 260.
Bule 22 of this court is but a statement of the universal canon or pre-
cept which is observed by ail courts where the matter of rights is in-
volved. That rule is as follows : "No verbal agreement of parties or
tbeir counsel, touching any canse pending before this court, shall be
deemed of any validity, or be noticed in any way, by the court, in case of
dispute or disagreement." The rule is thus stated in HoÉ. Gh. Pr. :
"It will be noticed that the agreement or consent, unless thus estab-
lished, is not even to be suggested against the party; and our chan-
cellors hâve been strict in adhering to this rule." Page 26. The
necessity and wisdom of the restriction is manifest by its universal
adoption by the courts, and, having been further emphasized by being
enrolled as a rule of this court, is obligatory, and must be followed.
The rule must therefore be discharged.
Baelow ». LooMis and others.
(Circuit Court, D. Vermont. March 20, 1884.)
1. Trust— Power of Revocation— Pailuke to Exercise.
A trust declared by testator during his life-time, with the privilège of revo-
cation, will, if unrecalled, prevail over tlie title of a reaiduary legatee.
2. Samb — Statement.
Testator transferred stocks and bonds to L. , upon trust to pay him the in-
come while he lived, and after his death to transfer thera to others, reserving
the power, however, to revolse this disposition of the property at any time.
He died, leaving the trusts unrevoked. Held, that the power of révocation died
with him, and that upon his death the trusts became absolute.
In Equity.
E. E. Hard, and A. G. Safford, for orator.
Daniel Roberts and Robert Roberts, for défendants.
Wheeleb, J. The orator is a residuary legatee under the will of
Sidney Barlow, who, in his life, at three several times, delivered and
transferred to the défendant Loomis stocks and bonds, under writ-
ten agreements made between them, providing in two of them that
Loomis should hold the stock and bonds in trust, to pay over the in-
terest and dividends to Barlow during his life, and at his decease to
transfer them to the other défendants; and in the other that Loomis
should hold the bonds for the benefit of other défendants atthe death
of Barlow, reserving the right to him to demand and hâve the income
-while he should live, and to revoke the trust altogether and hâve the
bonds returned to him if he should so elect. Loomis paid the in-
come to Barlow during his life ; he did not revoke the trust, but died
leaving the stocks and bonds in the possession of Loomis. This bill
678 FEDEBAL BEPOBTEB.
is brought to hâve thèse stocks and bonds broughl into the assets of
the estate, so that the orator may hâve his share of them. , The or-
ator's interest in them dépends whoUy upon whether they were a
part of the estate of the testator at the time of his death. If they were,
his share in them goes to him by the will; if they were not, nothing of
them would pass by the will to him, or any one. There is no ques-
tion as to mental capacity, nor as to the rights of creditors, nor in
any way as to the right and power of the testator to give or dispose
of thèse securities to Loomis, or the beneficiaries, or any one else, in
any manner he might see fit. The sole inquiry is as to the effect of
of what he did do. He could control the disposition of his estate after
his death only by will, exeeuted according to the statute of wills;
but he could divest himself of this property during life by mère deliv-
ery and transfer, such as lie f ully accomplished. Had there been no
réservations, there could bave been no question. But thèse réserva-
tions were ail optional and personal to himself. If he did not exer-
cise his right to them, they were gone. He died without exercising
the right, and it expired with him, leaving the property absolutely
gone ont of his estate, and wholly beyond thé orator's rights. The
transaction was in Vermont, (governed by Vermontlaws,) which fully
uphold it in this view. Blanchard v. Sheldon, 43 Vt. 512. Upon the
case made, there is no relief to which the orator is entitled.
Let there be a decree dismissing the bill, with costs.
Spink ». Francis and others.*
Brown V. Same.'
[Circuit Court, E. D. Louisiana. February 20, 1884.)
CONTBMPT.
Where the acts of the défendants were violations of the ordera of the court,
when strictly considered and construed, and where the détendants in their
sWorn answers purge themselves of any intentional violation of the court's or-
dera, and raay liave misconceived the reaponsibility for the acts committed, the
court reserved for future considération, in connection with subséquent conduct,
the doings of the défendants as presented by the évidence, and taxed against
them the costs of the rules.
On Eule for Contempt.
A. G. Brice, Joseph P. Hornor, and F. W. Baker, for complainants.
James R. Beckwith, for défendants.
BiLLiNGS, J. Thèse causes are before us on rules for contempt.
The cases show the issuance of the injunctions and the défendants'
knowledge of them by service or otherwise. It also appears that the
1 Reported by Joseph P. Hornor, Esq. , of the New Orléans bar.
LOUISVILLE & N. E. CO. V. BAILROAD COMMISSION OF TENNESSEE. 679
défendants were connected with prosecutions which were prohibited
by the injunctions, and aided such procédures after the existence of
the prohibitory orders. We think the acts of the défendants were
violations of the orders of the court when strictly eonsidered and con-
strued. On the other hand, the défendants, in their sworn answers,
purge themselves of any intentional violation of the court's orders; and
the nature of the things done rendered ifc possible that the défendants,
in advance of any judicial interpretion of the orders, might hâve mis-
conceived the responsibility for the acts committed. On the whole,
we are inclined, for the présent, to suspend the imposition of any pun-
ishment for what we must adjudge to be acts of disobedience, and
therefore, of contempt. The authority of the court and the rights of
the parties will be sufficiently maintained if we reserve for future con-
sidération,' in connection with subséquent conduct, the doings bf the
défendants as presented by the évidence now before us. The costs
of thèse rules will be taxed against the défendants intherules; those
in each rule against the défendant in that rule.
LomsviiiLB & N. E. Co. v. Eailkoad Commission of Tehhessee.
East Tennessee, V. & G. E. Co. v. Samb.
{Circuit Court, M. D. Tennessee. February 29, 1884.5
1. Railt^oads— Législative ConteoIi.
Railroads having been created mainly for the accommodation of tlie public,
and to facilitate tUe business of the country, and being indispensable to the
rapid and cheap transportation of commodities, are subject to législative con-
trol within the limits of state and fédéral conatitutional restrictions, and
may be required by law to refrain from so using their property as to injure
others, and by appropriate pains and penalties may be restrained from unjust
discrimination and extortionate charges, compelled to observe precautionary
measures against accident, and in other ways regulated for the public welfare.
2. Samb — Vestbd Rights.
But the législation adopted must observe the conlract rights of corporations
under thflir charters ; must be conlined to the exercise of the police powcr, and
not interfère with the vested rights of the compauies in their property or fran-
chises ; must not inflict punishment or take property otherwise tlian by due
process of law norwithout compensation; must notdenytothem the eqnal pro-
tection of the law; and must inallrespectsobservelheconstitutional guarantlea
prescribed for the protection of ail citizens — railroad companies being for such
purposes as much citizens as natiiral persons.
3. Samb— Tknnkssbe Act of Mauch 30, 1883— Uncbrtaintt ov the Act— Con-
stitotional Law.
The act of the gênerai assembly of Tennessee of March 30, 1883, to establîsh
a railroad commission analyzed, a.nd held to be invalid because its provisions
are too indeflnite, vague, and uncertain to snstain a suit for the penalties im-
posed, and do not sufficiently deflne the oiïenses therein declared. It leavesto
the jury to say whether, upon the proof , the différence in rates amounted to
discrimination, or whether the charges were unjust and unreasonable, thus
making the guilt or innocence of the accused dcpeiad upon thefinding of a jury,
680 FEDERAL BEPOETEE,
and not upon a construction of the act. It relegates the administration of the
Isw to the unrestrained discrétion of the jury, and there could be therefore no
reasonable approximation to uniform résulta, but verdicts would be as variant
as their préjudices, and inevitably lead to inequaiilies and injustice.
4. Same— Standard Presckibed by the Act.
Neither is the objection to the act for uncertainty removed by its attempt to
prescribe a standard of compensation for the guidance of the jury. It does not
with précision point put the assessment for taxation which is to furnish the
basis of judement, nor prescribe the rule under which the net earnings are to
be computed. But if thèse difflculties were overcome, there remains no metliod
of measuring what is a " fair and just return " on the value of the property of
tlie companies which they are allowed to earn before becoming liable to the
penalties of the statute, but the act leaves it to the unquahliea discrétion of
the jury, whose verdicts may vary not only as between diiîerent companies,
but as between différent suits with the same Company. One jury may fix it at
one rate per cent., and others at différent rates, so that no company could tell
whether it was violating the )aw or not, and the fact would be determincd by
the fluctuating contingenciesof business, and a charge made on the calculation
that 6 per cent, would be fair, miglit, by the verdict of a jury, upon facts trans-
piring subséquent to the alleged violation, be pronounced unreasonable and
unjust. The législature cannot delegate such power to a jury without a prac-
tical confiscation of the citizen's property.
6. Same — Constituïioîî dp Tennessee, Aut. 11, { 8 — Constitution of Unitp:d
States, Fourtkknth Amendment.
The act violâtes the eighth section of the eleventh article of the state con-
stitution and the fourteenth amendment of the constitution of the United
States. It discriminâtes against railroad corporations, in its third and thirteenlh
sections, by imposing upon them penalties in favor of the state, which are not
imposed for like offenses or conduct upon other persons operating railroads in
the state, although the act professes to regulate both. It also, in the twenty-
ninth-section, discriminâtes in favor of roads not completed, or the construc-
tion of which has not commeneed, by exempting them from régulation and
punishment for 10 years. The act also reverses tlie presumption of innocence,
and substitutes one of guilt, to be removed only by the accused proving inno-
cence, and puts the power to raise this presumption in the hands of three com-
missloners, who can, by their act, place the burden on the accused, or leave it
off, and arms them with authorily to enforce their decree by imposing penal-
ties, which may amount to the taking of private property without compensa-
tion. Besides, it enables a political party to bring to its aid the immense rail-
road property and influence, by action through the commissioners, which shali
be friendly or unfriendly, as the railruad companies favor one party or the
other.
Per Baxter, J.
6. Same — Interstate Ucmsierce — State Recutlation of Railroad Rates.
The act of the Tennessee législature, approved March 30, 1883, c. 199, enti-
tled, " An act to provide for the régulation of railroad companies and persons
operating railroads in tliis state, to prevent discrimination upon railroads in
this state, and to provide for the punishment of the same, and to appoint a
railroad commission," is invalid so far as it applies to the plaintiffs in thèse
cases, beoause it is a régulation of interotate commerce, acting directly, by a
control of the rates of compensation, upon the transportation of persons and
commodities in transit from one state into another. The states lîave surren-
dered the power to do this by the fédéral constitution, art. 1, § 8, which confei's
on congress the exclusive power " to regulate commerce with foreign nations,
and among the several states, and with the Indian tribes."
7. Same— Power of thk States Depined.
The power of the states to regulate railroad rates by such direct action is
limited to domestic transportation, which means that carrted on exclusively
within the boundaries of a state, and transportation can be domestic only when
it begins and ends within those boundaries; and this définition cannot, for the
purpose of enlarging state authnrity, be held to include so much of a transpor-
tation on a continuons shipmeut between two or more statea as will cover the
L0DI8\II,LE & H. B. CO. V. EAILEOAD COMMISSION OF TENNESSEE. 681
distance travelcd within the limits of anj' one of those states ; for this construc-
tion would utterly destroy the exclusive power of congress over the interstate
transportation, abrogate the oonstitutional provision, and enable the statua to
restrict, oljstruct, or impair that freedom of commerce between the states
■which it was the object of the provision to permanently secure. It can only
inolude the transportation carried on upon roads lying wholly within the state,
or else it may be to shipments beginning and ending in the state, wilhout réf-
érence to the character of the road in that regard. This is the utmost reach
of state power, and, as to this, no décision is now made, because the act itself
malies no discrimination, and attempts to control ail rates.
8. SaMB— KEGnLATINO THE InSTBUMENTALITIES OF COMMEECB— InvALID StAT-
UTES— When Wholly Void.
Until congress chooses to exercise whatever power it may hâve over domestic
commerce, as above described, by reason of any relation it may bear to in-
terstate commerce as an auxiliary or inatrumentality thereof, the atates may
continue their control over it as over any other such inatrumentality within
their territorial limits, although the interstate commerce of which it 13 an in-
strumentality may be indirectly or incidentally aflected by such control, but
they can never touch the interstate commerce itself by direct action upon it or
any part of it, by thèse régulations, and any state law, be it wise or unwise,
vaïid or invalid in other respects, and no matter what its character or the
necessity for such a law may be, which acts upon the contract between the
carrier and shipper for interstate transportation to regulate the charges for it,
or any part of it, or the conditions thereof in ^ny respect, opérâtes directly on
the commerce itself, of which the transportation is certainly a part, and not on
an instrumentali ty of it. Thèse distinctions must be observed in législation , and
that which neglects or overlooks them, or assumea to diaregard them, is neces-
sarily invalid ; and the courts cannot cure the defect by supplying through
judicial decree the necesaary qualifications to conform the législation to oon-
stitutional limitations.
9. Same— Power to Begttlatb Corpokations.
It is as impossible for a state to maite a régulation of interstate commerce
by the exercise of its power over the corporations of its création as by any other
power, if it permits them to engage in interstate commerce. Possibly, it may
bind the corporations permitted to engage in interstate commerce to schedules
of rates agreed upon by them; but this is binding only by force of the contract
of the carrier to be so bound, and not as a régulation of the rates underany mu-
nicipal power of the states over the commerce. A régulation of interstate
commerce, as such, is as invalid in a charter as elsewhere in a state statute.
10. Same— Case in Judgment.
The Louisville & Nashville Railroad Company, being a Kentucky corporation,
was authorized by license of the laws of Tennessee to extend its road into that
state ; and, subsequently, by laws passed for the purpose, to consolidate with
other railroad corapanies, and thereby became an extensive System of inter-
communication between the states from the Oliio river to the Gulf of Mexico.
The Bast Tennessee, Virginia & Georgia Railroad Company, a Tennessee cor-
poration, by authority of law, became a Consolidated corporation, operating a
System of railroads between the states and extending through Tennessee into
Georgia, Alabama, and Mississippi, forming with its connections a united line
of interoommunication, traversing North and South Carolina, Virginia, and
other states. Held, that an act of the législature which attempts to control the
rates for fares and freighta of persons and commodities passing over thèse roads
from one state mto another, on the theory of regulating the chargea for the
distances traveled within the state of Tennessee, is invalid as a régulation of
interstate commerce, and the railroad commissioners will be enjoined from
executing it as to thèse roads.
Per Hammond, J.
Application for Preliminary Injunction.
The Louisville & Nashville Eailroad Company filed its bill al-
leging that it was a Kentucky corporation, extending its road into.the
682 FEDEBAIi BBPOBT£B.
state of Tennessee by authority of the laws of the latter state; that
by other laws passed for the purpose it had been authorized to ae-
quire and to consolidate with other roads extending into neighboring
states ; that by its charter, and the charters of the other roads so
acquired by it, there were fixed certain maximum rates of charges
for transportation, which conferred a contract right to establish its
own rates within the maximum, which had not been exceeded by it.
The East Tennessee, Virginia & Georgia Eailroad Company, by its
bill, alleged that it was a Tennessee corporation, authorized by law to
consolidate its roads with others, and operating a System of roads ex-
tending into neighboring states, and that by its charter there were
fixed certain maximum rates which conferred upon it the contract
right to establish its own rates within the maximum, and which it had
not exceeded. Both bills alleged that the défendants had been ap-
pointed railroad commissioners, and were assuming to aot by au-
thority claimed under the act of the gênerai assembly of the state of
Tennessee, approved March 30, 1883, which is as follows :
"ChapUr CXCIX.
"RAtLEOAD Commission Bili,.
"A bill to be entitled 'An Act to provide for the régulation of railroad
companies, and persons operating railroads intliis state; to prevent discrimi-
nation upon railroads in this state; and to pro vide for the punishment for the
same; and to appoint a railroad commission.'
"Section 1. Be it enacted by the gênerai assembly of the state of Tennes-
see, tl>at the main track and ail the branches of every railroad in this state is
a public highway, over which ail persons hâve equal rights of transportation
for passengers and freights, on the payment of just and reasonable compen-
sation to the owner of the railroad for such transportation ; and any person
or corporation engaged in the business of transporting passengers or freights
over any railroad in this state who shall exact and receive for any such trans-
portation more than just and reasonable compensation for the services ren-
dered, or demand more than the rates specifled in any bill of lading issued
by such person or corporation, or who for his or its advantage, or for the
advantage of any Connecting line, or of any person or locality, shall make any
unjust and unreasonable discrimination in transportation against any indi-
vldual, locality, or corporation, shall be guilty of extoition, and in every case
it shall be for "the jury to détermine from ail the évidence whetlier more than
just and reasonable compensation was exacted and received, or whether any
such discrimination in transportation, which may be established by the évi-
dence, against the individual, locality, or corporation, as the case may be, was
juade for the benefit or advantage of the person or corporation operating such
railroad, or of any person or locality: provided, that nothing in this act shall
be constrUed to prevent contracta for spécial rates for the purpose of develop-
ing any industrial enterprise, or to prevent the exécution of any contract now
existing.
"Sec. 2. Be it further enacted, that the party injured may recover of the
person or corporation guilty of extortion, as deflnedin this act, ten times the
amount of damages sustained by the overcharge or unjust discrimination, as
the case may be, and a reasonable fee for the counsel prosecuting the case in
any court having jurisdiction of the amount, in any county where the person or
corporation operating the railroad does business; but if it appears that the
service in which the extortion was cominitted was done at rates or upon term»
LODISVILLB & N. R. CO. V. BAILBOAD COMMISSION OF TBNNESSEIB. 683
previously approved by the railroad commission hereinafter established, only
actual damages, and no attorney's fee, shall be recovered.
"Sec. 3. Be it fiirther enaeted, that It shall be the duty of the commission
to investigate and détermine whether the provisions of this bill hâve been
violated; and whenever said commissioners shall become satisfled that any
railroad corporation bas violated any of the provisions of this act, they
shall immediately cause suit or suits to be commenced and prosecuted against
any railroad corporation guilty of sueh violation in any court having juris-
diction of the subject-matter. Said suit shall be prosecuted in the name of
the State of Tennessee, and conducted by the attorney gênerai of the judicial
circuit in which the same is instituted, under the direction of said commission-
ers, and no suit so instituted shall be dismissed without their consent. AH
moneys so collected shall be paid into the state treasury. If upon the trial of
any cause for the recovery of the penalties provided in this bill, the jury shall
flnd for the state, they shall assess and return with their verdict the amount
of the penalty to be imposed on the défendant at any amount not less than
$100, nor more than $1,000, and the court shall render judgmènt accord-
ingly.
"Sec. 4. Be it fnrther enaeted, that in ail suits or proceedings under this
statute the défendant may give in évidence the fact that the rates or terms
in respect to which extortion is alleged had been previously approved by
the railroad commission hereinafter established, and such approval shall be
prima faoie évidence that such rates or terms were not extortionate.
"Sec. 5. Be it further enaeted, that no rates or charges for service in the
transportation of freight over any railroad shall be held or considered extor-
tionate or excessive under any proceeding under this act, if it appears froni
the évidence that the net earnings of such railroad transporting freight, if
done without silch discrimination on the basis of such rate or charge, together
with the net earnings from its passenger and other trafic, would not amount
to more than a fair and just return on the value of which such railroads
with its appurtenances and equipinents to be assessed for taxation.
"Sec. 6. Be it further enaeted, that ail actions to recover damages under
this act shall be commenced within six months after the cause of action ac-
crues.
"Sec. 7. Be it further enaeted, that the foregoing sections of this act shall
not take effect until the first day of July, 1883,
"Sec. S. Be it further enaeted, that it shall be the duty of ail persons or
corporations in this state, who shall own or operate any railroad therein, to
publish by posting at ail the dépôts the tariflfs of rates, which hâve been ap-
proved by said commission for transporting freights, showing the rates for
each class, including gênerai and spécial rates, and it shall be unlawful for
such person or corporation to make any réduction or rebate from such tariflf
in favor of any person or corporation which shall not be made in favor of ail
other persons or corporations by a change in such published rates.
"Sec. 9. Be it further enaeted, that it shall be unlawful and within the
prohibition of this act for any railroad corporation doing business in this
state, to make any contract, agreement, or arrangement with any other rail-
road corporation, or with any common carrier by water in respect to the
transportation of freights of any description, from any place within this state
by which it is to transport only a certain portion of such freights, or by which
it is to refuse to transport such freights or any portion thereof, or by which any
common carrier by water is to refuse to transport such freights or any portion
thereof, or by which it is to reeeive any sum of money, or anything of value
for not transporting ail or any part of such freights, or by wliiCh it is to pay
ahy sum of money, or part with anything of value as an inducement to any
other i"ailroad corporation or common carrier by watèr not to compete with it
iu the transportation of such freiglits, or by which it and other railroad corpo-
QSi FEDEBAL BEPOSTEB.
rations or common carrier by water, distribute among theraselves for trans-
portation, according to percentages, any freights ofEered for shipment; and
railroad corporations are required to remove freights wiien delivered or of-
fered for sliipment to the extent of their facilities wittiout unnecessary delay
and without regard to any con tract, agreemeut, or arrangement expressed or
implied as aforesaid, and ail railroad corporations refusing or neglecting so
to do are hereby deelared to be subject to the penalties imposed by this act.
"Sec. 10. Be it furtlier enacted, tliat this'act shall notprevent any railroad
Company from transporting treight free of chargé, provided it is not done to
évade the provisions of this act.
"Sec. 11. Be it further enacted, that it shall be the duty of the governor to
nominate three compétent persons, one from each grand division of the state,
subject to the confirmation of the senate, if in session, who shall constitute
the railroad commission of the state of Tennessee, and the commissioners,
after qualifying, as prescribed in section 11 of this act, shall proceed to elect
oneof their number as président and oueas secretary; and said commission-
ers shall hold their offices until the first day of January, 1885, and their suc-
cessors shall be elected by the qualifled voters of the state at the Novetnber
élection, 1884, and every two years thereafter.
"Sec. 12. Be it further enacted, that the said railroad comrnissionera shall
be state offlcers, and before entering on their duties shall take the oath of
office prescribed for other state offlcers, and may be impeached and- removed
from office for the same causes, and in the same manner, as other state of-
flcers. They shall hold office for two years and until their successors
respectively are duly elected or appointed and qualifled, and any vacancy
shall be filled by the governor; the person so appointed shall hold office
until his successor is duly appointed, conflrmed, and qualifled as above pro-
vided. No person in the employ of any railroad corporation, or other
person, owning or operating a railroad in this state, or owning any stock
in any railroad corporation, shall be nominated by the governor as a mera-
ber of such commission, and any comraissioner who shall aceept any gift,
gratuity, or émolument, or employment from any person or corporation own-
ing or operating a railroad in this state, during his continuance in office, ex-
cept a permit for himself to pass over the railroad of such person or corpora-
tion, shall forfeit his office, and may be impeached and removed from office
for that cause, as well as any of the causes specifled by law for the impeach-
ment of other state offlcers.
"Sec. 13. Be it further enacted, that it shall be the duty of the commission
to consider and carefully revise aU tarifls of charges for transportation of any
person or corporation owning or operating a railroad in this state, and if, in
the judgment of the commission, any such charge is more than just and rea-
sonable compensation for the service for which it is proposed to be made, or
if any such chargesamounttounjustand unreasonable discrimination against
any person, locality, or corporation, the commission shall notify the person or
corporation of thechanges necessary to reduce the rateof charges to just and
reasonable compensation, and to avoid unjust and unreasonable discrimina-
tion ; when such changes are made or when none are deeraed proper and ex-
pédient, the members of the commission shall append a certiflcate of its ap-
proval to such tarifE or charges, and in case such change shall not be made,
or if any charge subsequently made shall not conform thereto, said corpora-
tion shall be helà. prima facie guilty of extortion.
"Sec. 14. Be it further enacted, that it shall be the duty of said commis-
sion to hear ail complaints made by any peraon against any such tariff or rates
so approved, on the ground that the same in any respect is for more than just
and reasonable compensation, or that such charges, or any of them, amount
to or operate so as to effect unjust and unreasonable discrimination, such
complaint must be in writing and specify the items in the tariff against which
LODISVILLB & N. E. CO. V. RAILROAD COMMISSION OB' TBNNBSSBB. 683
complaint is made, and if it appears to the commission that there may be jus-
tice in the complaint, or that the matters ought to be investigated, the com-
mission shall forthwith furnish to the person or corporation operating the
railroads a copy of the complaint, together with notice that, at a time and
place stated in the notice, the tariff as to said items will be revised by the
commission, and at such time and place it shall be the duty of the commis-
sion to bear the parties to the controversy, or by counsel, and such évidence
as may be offered, oral or in writing, and may examine witnesses ùi\ oath,
eonforming to the mode of proceedings as nearly as may be con renient to
that required of arbitrators, giving such time and latitude to each side, and
l'egulating the opening and conclusion of any argument as the commission
may consider best adapted to arrive at the truth, and when the hearing Is
concluded, tha commission shall give notice of any changes deemed proper by
them to be made, to the person or corporation operating the railroad. And
any subséquent charge higher than tlie atnount flxed shall be prima fade
évidence of extortion. And ail railroad companies or persons operating rail-
roads in this state shalJ raake out and deliver for revision to the commission-
ers a schedule of their rates of charges for the transportation of freights, cars,
and passengers, within twenty days after the président or superintendent is
notifled by the commissioners that they are ready to consider the same, and
on f ailure to do so, said railrojid company, or other persons so operating said
railroad, shall be liable to a fine of $100 for every day of said failure after the
expiration of said twenty days; and said railroad company or other persons
operating any railroad shall hâve the right to appear and make such proof as
they may désire in regard to revision by said commissioners, under such rég-
ulations as the commissioners may presoribe.
"Sec. 15. Be it further enacted, that said commission shall hâve an office
at the capital, and shall meet there on the flrst Monday in every month, and
shall remain in session until ail business before them is disposed of; and
shall hold other sessions at such times and places as may be necessary for the
proper discharge of their duties, or as the convenience of parties in the judg-
ment of the commission may require. The members of said commission shall
each receive a salary of two thousand dollars, uniess restrained by law from
theperformanceof their duties, to bepaid as the salaries of the other state offl-
cers. It shall be the duty of the commission to keep a record of ail its pro-
ceedings, which shall be open at ail times to the inspection of the public.
"Sec. 16. Be it further enacted, that ail money paid out under this act
shall be paid on warrant of the comptroller to the treasurer, as by law pro-
vided, iueluding such sum as may be necessary to procure ofiSce f urniture, .
stationery, and other office expenses, including rent of office of said commis-
sion; provided that such office expenses shall not exceed flve hundred dollars
per annum.
"Sec. 17. Be it further enacted, that whenever, in the judgment of the rail-
road commission, it shall appear that repairs are necessary upon any such
railroad, or that any addition to the roUing stock, or any addition to or change
of the station or station-houses, or any change in the rates of fares for trans-
porting freightor passengers, or any change in the mode of operating the road
and conducting its business, is reasonable and expédient in order to promote
the seourity, convenience, and accommodation of the public, they shall give
information in writing to the corporation of the improvements and changes
which they adjudge to be proper, and a report of the proceedings shall be in-
cluded in the annual report of the commission to the législature.
"Sec. 18. Be it further enacted, that the said commissioners shall bave
the right to pass free of charge in the performance of their duties on ^1 the
railroadsin this state, That said commissioners shallhave gênerai supervision
over ail the railroads of Tennessee, and shall examine the same from time ^
time, and keep theinselves informed as to their condition, and themannerin
y
686 ... FEDBKAIi SEPORTEB.
which they aie operated with référence to the security and accommodation of
the public, and tlie compliance of the several corporations with their char-
ters and the la ws of the state.
"Sec. 19. Be it further enacted, that said commission shall, as oftenas they
dflem it neeessary, examine the several raiiroads in this state, and shall rec-
omaiend in writing to the several railroad companies, or any of them, frotn
time to time, the adoption of such measures and régulations as said commis-
sioners'deem condueive to the public safety and interest.
"Sec. 20. Be it further enacted, that the managers operating the several
raiiroads of this state shall furnish the said commission with ail the informa-
tion required, relative to the management of their respective Unes, and par-
ticularly with copies of ail leases, contracta, and agreements for transporta-
tion, with express, sleeping-car, or other companies, to which they are parties,
with sehedules of tariff rates.
"Sec. 21. Be it further enacted, that the several railroad companies, trus-
tées, or recel vers, or other persons operating raiiroads in this state, be and
are hereby required to make annual returns of their business to the board o£
commissioners on or before the flrst day of September of eaeh year, made up
to the close of business on the thirtieth day of June next preceding, which
annual returns shall be made in dupUcate in the manner prescribed by said
commissioners, upon the blank forms to be furnished by said commissioners
to said railroad companies. Any railroad company which shall negleot or re-
fuse to make such terms shall forfeit to the state $100 for each day of such
refusai or neglect.
"Sec. 22. Be it further enacted, that every railroad company shall, within
twenty-four hours after the occurrence of any accident to a train, attended
with serions Personal Injury, on àny portion of its line within the limits of
the state, give notice of the same to the railroad commissioners, who, upon
receiving such notice, or upon public rumor of such accident, may repair or
dispatch one or more of their number to the scetie of said accident, and in-
quire into the f acts and circumstances thereof , which shall be recorded in the
minutes of their proceedings, and embraced in their annual report,
"Sec. 23. Be it further enacted, that the said commissioners may summon
and examine, under oath, auch witnesses as they may think proper in rela-
tion to the aflairs of any railroad company.
"Sec. 24. Be it further enacted, tl)at the board, through their chairman,.
shall make annual reports to the governor, on or before the first day of De-
cember in each year, for transmission to the législature, of their doings for
the year ending on the thirtieth day of June next preceding, containing such
-facts as will disclose the actual workings of the railway system in this state,
and such suggestions as to the gênerai railroad policy of the state as may
seem to them appropriate. ïhey shall also subrait such recommandations for
further législation upon the subjects of raiiroads as they may deem neeessary
or advisable for the interests of the state.
" Sec. 25. Be it further enacted, that the railroad commissioners shall hav&
at ail times access to the list of stoçkholders of every corporation operating a
railroad in this state, and may, in their discrétion, at any time, cause the
same to be çopied in whole or in part for their own information, or for the
information of persons owning stiXik in such corporations.
"Sec. 26. Be it further enacted, that it shall be the duty of the railroad
commission, by correspondence, conventions, or otherwise, to confer with the
railroad commissioners of other states of the Union, and with such persons
from states having no railroad commissioners as the governor of such states
may appoint, for the purpose of agreeing, if practicable, upon a draft of stat-
utes to be submitted to the législature of each state, which shall secure such
uniform control of railroad transportation in the several states, and from one
state into or thj;ough another state, as will bost subiserve the interest of trade-
LOUISVlLtE & N. E. CO, V. EAILHOAD GOMMISSIOK OF TENNESSEE. 687
and commerce of the whole country; and said commission shafl include in
their annual report to the goveruor an abstract ol the proceedings o£ any such
conférence or convention.
"Sec. 27. Be it further enacted, that no person holding the office of railroad
commissioner shall, during his contiiiuance in office, personally, or through
any partner or agent, render any prof essional services, or make or perf orm
any business contracts with or for any railroad owned or operated in this state,
excepting contracts made with such railroad in its eapacity as common carrier.
"Sec. 28. Be it further enacted, that nothing in this act contained shall be.
oonstrued to afîect in any manner or degree the légal duties, rights, and obli-
gations of any railroad corporation or other person owning or operating any
railroad in this state, or its légal liability for the conséquences of its neglect
or mismanagement, whether adjudged by said commission tb be reasonable,
expédient, and proper, or not.
"Sec. 29. Be it further enacted, that none of the provisions of this act shall
apply to any railroad now being construeted, or which may hereaf ter be begun
and constructed, in this state, until ten years from and after the completion
of such new railroad. >
"Sec. 30. Be it further enacted, that witnesses sumnioned to appear bèfore
said commission shall be entitled to the same per dt'ei» and mvleage as wit-
nesses attending the circuit court. Witnesses summoned by the commissioners
shall be paid by warrant on the treasury, to be drawn by the comptroller on
ihe certificate of the président of the board, of theamount to which such wit-
ness is entitled; witnesses summoned by any party, to be paid by the party by
whom they are summoned. And the commissioners are hereby clothed with
the same power to enforce the attendancè of witnesses as is now possessed by
any court of record.
"Sec. 31. Be it further enacted, that this act take effect from and àfter its
passage, tha public welfare requiring it.
"Passed March 29, 1883. "W. L. Ledgebwood,
"Speaker of the House of Eepresentatives.
"B. I". Alexander,
"Speaker of the Senate.
"Approved March 30, 1883, Wm. B. Bate, Govérnor."
The bills further averred that the défendants had notified the plain-
tiff corporations that they would proceed under that act to révise ail
their tariiïs of rates within the state of Tennessee, and alleged that
the proposed action of the commissioners, as woll as the said législa-
tion, were in violation of the state and fédéral constitutions in several
respects, not necessary to report, as the décision of the court is not
based upon them. The constitution al provisions relied npon, to-
gether with the avermentsof the bills pertinent thereto, are suffi-
ciently stated in the opinions.
The défendants filed their affidavits in eaeh of the cases, in which
they denied the contention of the plaintiffs as to the construction of
their respective charters, and the allégations upon which the validity
-of the passage of the act was attacked, denied that the act in any
way violated the constitutional provisions relied on by the plaintifs,
or that they were ahout to act illegally or in violation of plaintifis'
rights, and explained in détail what they had done under the act
in respect of the plaintiffs' roads, ând what course of conduct they
proposed to pursue. They averred the power of the state to pass.
FBDBBAL BEPOETEE.
ihe act, and elaborately detailed certain facts in the conduot oî the
plaintiffs respectively, to show the necessity of régulation in order
to prevent the unreasonable and unjust charges and discriminations
of which affiants alleged the plaintiffs had been guilty, including ex-
cessive charges beyond the maximum prescribed by the respective
charters of the plaintiffs. They also expressed a great désire to ex-
ercise their powers under the act with beeoming caution and modéra-
tion, and in the best of faith to the railroad companiea and the pub-
lie, 80 that the interests of ail should be reasonably promoted and
proteeted.
The circuit judge granted a restraining order, and directed the ap-
plication for a preliminary injunction to be argued at Nashville before
himself and the two district judges of Tennessee.
Ed. Baxter, East é Fogg, Dickinson é Fraser, and Smith de Allison,
for Louisville & N. E. Co.
Wm. M. Baxter, for East Tennessee, V. & G. E. Co.
Vertrees é Vertrees and S. F. Wilson, for défendants.
Before Baxter, Hammond, and Key, JJ.
Baxtee, J. The complainant, the Louisville & Nashville Eailroad
Company, daims to be a corporation and citizen of Kentucky, and
the défendants are the "railroad commission," appointed under and
pursuant to the act of March 30, 1883. The provisions of thia act,
80 far as they are material, wïH be recited in the progress of this
opinion. It is enough, for the présent, to say that it purporfca to
vest the défendants with gênerai supervision of ail the railroade and
railroad opérations in Tennessee. The complainant, who owns and
opérâtes several railroads in the state, contends — First, that said act
was not passed in the manner prescribed and. according to the for-
malities required by the constitution, or, if it was, it was not passed
in the form in which it bas been promulgated; and, seeondly, if con-
stitutionally enacted, it is répugnant to the state and fédéral consti-
tutions, and therefore void and inoperative. It furthermore com-
plains that the défendants are about to enforce the same to its great
détriment and irréparable iujury, and prays for an injunction to
restrain the défendants from interfering, under the color thereof,
with its property or business. Per contra, the défendants insist that
the act was regularly passed as promulgated, and that it is, in ail of
its provisions, within the constitutional prérogatives of the gênerai
assembly, and a valid enactment ; and that the enforcement thereof
by them will be no légal wrong of which the complainant bas any
right to complain.
Our duty, therefore, is to inquire and détermine whether there is
any irreconcilable répugnance between the act and the state or féd-
éral constitutions. Its first déclaration is that ail railroads in the
state are publie highways, over which ail persons hâve equal rights
of transportation for their persons and freight, on the payment of a
just and reasonable compensation therefor. To this we fully assent.
LOUIS VILIiE & N. B. CO. V. BÂILBOAD COMMISSION OF TENNESSEE. 689
Eailroads hâve been created mainly for the accommodation of the
public and to facilitate the business of the couutry. They are indis-
pensable to the rapid and cheap transportatiou of commercial com-
modities. Under the fostering care and protection hitherto extended
to them, they hâve expanded into huge proportions. With the be-
ginning of tbis year we had 125,000 miles of road, representing more
than $5,000,000,000 of capital, giving employment to 500,000 people,
and in the annual receipt of more than $800,000,000 of earnings.
They permeate every part of this extended country, and in a large
measure monopolize the entire inland carrying business. Everybody,
from the very exigencies of business, is compelled to patronize them.
In this regard business men are left without any option. If unre-
strained by wholesome législation the public would be very much at
their mercy. They could, by unjust discriminations, made under the
name of diawbacks, rebates, or other disingenuous pretenses, favor
friends and oppress opponents, and so adjust and graduate their rates
according to the exigencies of fluotuating markets, as to secure to
themselves or those who operate them an undue proportion of ad-
vancing priées. It would, therefore, in view of thèse obvious possi-
bilities, be a humiliating confession to admit that there was no re-
served power, either in the court or the législature, to protect the pub-
lic against such possible abuses. We do not hesitate to affirm the
existence of such a power. Every owner of property, however abso-
lute and unqualified his title, holds it subject to the implied liability
that the use thereof shall not be injurious to the public. Eights of
property, like social and conventional rights, are held subject to such
reasonable limitations in regard to their enjoyment as shall prevent
them from being injurious to the rights of others, and to such reason-
able restraints and régulations, to be established bylaw, as the légis-
lature may from time to time ordain and establish. It is, in this
principle, applicable alike to ail kinds of property, generally denom-
inated the "police power" of the state, that the authority is found for
such control over individuals and corporations, and over their prop-
erty, as is necessary to insure safety to ail and promote the public
convenience and welfare. And in the exercise of this reserved au-
thority the législature may require railroad corporations and persons
operating railroads in the state to observe precautionary measures
against accident, forbid unjust discrimination and extortionate charges,
and, -where there is no valid contract to the contrary, prescribe a
reasonable maximum of charges for the services to be performed by
them, and enforce the same by appropriate pains and penalties.
There are many other things that may be lawfuUy exacted of them,
which need not be recapitulated hère. The législature, however, can-
not, under the prêteuse of régulation, deprive a corporation of any of
its essential rights and privilèges. In other words, the rules pre-
scribed and the power exerted must be within ihe police power in fact,
and not covert amendments to their charters in curtailment of their
V.19,no.l0— 44
690 J-BDEBAL BBPORTKB.
corporate franchises. Nor cari the législature, in the exercise of thia
power, make any régulation in contravention of the state or national
constitution. Every statute which invades vested rights, inflicts pun-
ishment or takes private property otherwise than by due process of
law, impairs the obligation of valid contracts, or dénies to any one
or more persons the equal protection of the law, are unconstitutional
and invalid.
Does the act in question violate any of thèse principles? As we
hâve seen, it assumes to vest the défendants with a gênerai super-
vision of ail raiiroads and railroad opérations in the state, and makes
it their duty "to consider and oarefuUy revise the tarififs of charges
for transportation," etc., and if, in their judgment, the rate charged
by them "is more than a just and reasonable compensation" for the
service to be performed, or if such rate "amounts to unjust and un-
reasonable discrimination" against any person, locality, or corpora-
tion, they are to notify said corporations, etc., of the changes neces-
sary to reduce the rate to "a just and reasonable compensation," and
to "avoid unjust and unreasonable discrimination," and "when such
changes are made or deemed unnecessary, " said oommissioners are
«ommanded to append a certificate of approval to the schedule of
charges so authorized by them, and the rates thus fixed, approved,
and certified shall be frima fade évidence of the reasonableness and
justice of the sarae; but they are nevertheless subjeet to revision by
juries as will be hereinafter shown. The act does not, in express
i'irms, command railroad carriers to adopt the rates prescribed by the
Ar>mmissioners, but provides that if they shall "exact and receive"
more than "a just and reasonable compensation," or "demand more
than the rates specified in anybill of lading" issued by them respect-
i'/ely, or shall for their "advantage or for the advantage of any Con-
necting Une," or of "any person or locality;" or if such railroad cor-
poration makes any "unjust or unreasonable discrimination," etc.,
(nnless in the fulfîllment of an existing eontract or some contract to
le thereaf ter made for the purpose of developing some industrial
enterprise,) it shall be held prima fade guilty of the crime of extor-
sion, as defined by the act, and subjeoted to the pains and penalties,
fherein imposed; and every "injured" party is authorized to sue for
<^ach extortionate charge, and recover "ten times the amount of the
(damages sustained," and a reasonable fee for his counsel, unless it
nhall appear that the alleged extortionate charge conformed to the
rates fixed by the commission, in which contingency, (if the jury shall
fntertain the opinion that the rates so fixed are too high or amount
lo an unjust and unreasonable discrimination,) they are required to
f'nd for the plaintifif, but only for his actual damages, excluding the
fee to counsel. Furthermore, the oommissioners themselves are not
î ound by the rates prescribed by them.- On the contrary, they are
.harged with the duty of "investigating" and "determining" whether
■ny of the provisions of said act are violated, and whenever satisfied
LOUISVILLE & N. B. CO. V. EilLEOAD COMMISSION OF TENNESSEE. 691
that violations tbereof hâve occurred, notwithstanding the corpora-
tion may hâve charged the rates fixed and authorized by them, they
are peremptorily commanded by the statute to bring suits for every
such violation against the offender in the name and for the beneût
of the state; and if upon the trial the jury shall believe from the tes-
timony adduced that the charges are "unjust and unreasonable," or
that they "atnount to unjust and unreasonable discrimination," their
verdict must be for the state, and they are required to assess and re-
turn therewith a penalty of not less than $100 nor more than $1,000,
and the court shall render judgment therefor.
The complainant insists that the act is too indefinite to sustain a>
suit for the penalties therein imposed, the offenses for which said
penalties are to be inflicted not being sufficiently defined. The défini-
tion of the two principal of thèse offenses, is, — First, the taking of
"unjust and unreasonable compensation;" and, secondly, the making
of "unjust and unreasonable discriminations." But what is unjust and
unreasonable compensation, and unjust and unreasonable discrim-
ination? And can an action, quasi criminal, be predicated thereon?
It was expressly held to the contrary in the case of Gowan v.East Tenn.,
V. <è G. R. Co., decided a few years since, at Knoxville, (but not re-
ported,) because, as the learned judge said, "it would hâve to be left
to a jury, upon the proof, to say whether the différence" in the rates
"was discrimination or not," and that the same différence "might in
one instance be held a violation of the law and in another not," thus
making the guilt or innocence of the accused dépendent upon the
finding of the jury, and not upon a construction of the aet. "This,"
he said, "I think cannot be done." If this décision is authoritative,
it is conclusive of this part of this case. We think the décision clearly
right. Questions as to what is, a reasonable time for the performance
of a; contraet, pr reasonable compensation for work and labor done by
one man at the request of another without any stipulation as to the
priée to be paid, and other like cases, frequently arise in civil contro-
versies. But tbe law furnishes, in ail such cases, a standard ol com-
pensation for the guidaneeof the jury. Without such légal standard
there could be no reasonable approximation to uniform results; the
verdicts of juries would be as variant as their préjudices, and this
could not be tolerated. To thus relegate the administration of the
law to the unrestrained discrétion of the jury ; to thus authorize them
to détermine the measure of damages and then assess the amount to
which a plaintiff may be entitled, would inevitably lead to inequalities
and to injustice. Hence, the statute under considération undertakes
to supply this desideratum by which juries are to be governed in the
détermination of the questions submitted to them. That standard is
"that no rates or charges for service in the transportation of freight
over any ra;ilroad, shall be held or considered extortionate or excessive
under any proeeeding under this act, if it appears from the évidence
that the net earnings * * * from its passenger and other traffie
692 FEDEBAIi BKFOBÏES.
would not amount to more than a faîrand just return on the value of
whieh such railroads with its appurtenances and equipments to be
assessed for taxation."
This définition la somewhat obscure. But, however interpreted, it
does not obviate the objection made or mitigate its force, but intensi-
fies pre-existing doubts. The value is to be the amount at which the
road, its appurtenances and equipments are "io he assessed for taxa-
tion." But what assessment is to govern? The onemade before or
after the alleged overcharge or prohibited discrimination ? The lan-
guage of the act is, "to be assessed." But we will not tarry hère. Sup-
pose the vahie satisfactorily ascertained, how and upon what basis
are the net earnings to be computed? Is the estimate to be basedon
past receipts, current income, or anticipated earnings? Is the ac-
cused corporation to be held to anticipate its future opérations, fore-
see the amount of its receipts and expenditures, and accurately fore-
kno-w its future profits and losses, so as to be able to strike a balance
in advance of actual results in order to make its charges conform to
the requirements of the statute ? If so, how far in the future must
their f oreknowledge extend ? Thèse are some of the many difficulties
with which railroad companies are to be embarrassed, and against
which the act requires them to provide. But we will suppose thèse
to hâve been successfuUy surmounted, and another and more obsti-
nate problem remains. Thèse corporations are, in addition to their
expenses, aUowed to charge at a rate that will insure a "fair and
just return" on the value of their property. But what is a fair and
just return? This vital question is by the act left to the unqualified
and unrestrained discrétion of the jury. There is no légal standard
erected whereby the jury can measure the amount. One jury may
fix it at 2 or 3 per cent, per annum, while another jury may, in view
of business contingencies and fluctuating values, allow 6, 8, or 10 per
cent., and their action wonld be so far conclusive as to be beyond
the revision of any reviewing court. The facts that the jury are to
ascertain are — First, the net earnings; and, secondly, what would be a
"fair and just return." The ascertainment of net earnings involves
necessarily an inquiry into the gross receipts and expenditures. May
the jury revise the expense account, and if so, to what extent? Both
the earnings and expenses vary in accordance with the exigeneies of
business. Are rates to be varied in accordance with the fluctuating
fortunes of railroad opérations ? If so, a charge reasonable in itself
and honestly made might be rendered extortionate, and hence crim-
inal, by a réduction of expenses or an unexpected increase of business,
or a charge honestly made on the supposition that 5 or 6 per cent,
would be fair and just, might be converted into a crime by the ver-
dict of a jury subsequently rendered, based, it may be, upon facta
transpiring subséquent to the alleged violation of the law.
We think the property of a citizen — and a railroad corporation is,
in légal contemplation, a citizen — cannot be thus imperiled by such
LOUIBVILLE & N. B. CO. V. BAHiBOÀD OOMUISSION OF TENKESSBB. 6D3
vague, uncertain, and indefinite enactments. The corporations and
persons against whom this aet is directed oan do nothing under it
■with reasonable safety. They may take counsel of the commission,
act upoii their advice, and honestly endeavor to conform to the stat'
ute. But if a jury before whom they may be subsequently arraigned,
shail, in their judgment and upon auch arbitrary basis as they are at
liberty to adopt, conclude that the commissioners misadvised or that
the managers of the accused railroad corporation made a mistake in
regulating their charges upon a 5 per cent., instead of a 4 per oeni,
basis, the honesty and good faith of the accused will go for nothing,
and penalty upon penalty may be added until the défendants' prop-
erty shall be gradually transferred to the public. This cannot be per-
mitted. Penaities cannot be thus inflicted at the discrétion of a jury.
Before the property of a citizen, natural or corporate, can be thus
confiscated, the crime for which the penalty is inflicted must be de-
fined by the law-making power. The législature cannot delegate this
power to a jury. If it can déclare it a criminal act for a railroad
corporation to take more than a "fair and just return" on its invest-
ments, it must, in order to the validity of the law, define with rea-
sonable certainty what would constitute such "fair and just return."
The act under review does not do this, but leaves it to the jury to sup-
ply the omission. No railroad company can possibly anticipate what
view a jury may take of the matter, and hence cannot know in ad-
vance of a verdict whether its charges are lawful or unlawful. One
jury may convict for a charge made on a basis of 4 per cent., while
another might acquit an accused who had demanded and received at
the rate of 6 per cent., rendering the statuts, in its practical working,
as unequal and unjust in its opération as it is indefinite in its terms.
No citizen, under the protection of this court, can be constitutionally
Bubjected to penaities and despoiled of his property, in a criminal or
guasi criminal proceeding, under and by force of such indefinite légis-
lation.
The act furthermore confiicts with the eighth section of the elev-
enth article of the stale constitution and the fourteenth amendment
to the constitution of the United States. The first of thèse provides
that "the législature shall hâve no power to suspend any gênerai law
for the benelit of any particular individual, nor to pass any law for
the benefit of individuals, inconsistent with the gênerai laws of the
land ; nor to pass any law granting to any individual or individuals
rights, privilèges, immunities, or exemptions, other than such as may
be by the same law extended to every member of the community who
may be able to bring himself within the provisions of such law;" and
the last — the fourteenth amendment — prohibits the states from "de-
priving any person of life, liberty, or property without due process of
law, or denying to any person within their jurisdiction the equal pro-
tection of the law." It is not necessary for us to undertake, in this
••a^e, to define the boundaries or limit the opération of thèse jnst con-
69é FEBEBAL BEPOBTEB.
stitutional restrictions upou législative authority. Their gênerai ol?-
ject is to secure to ail citizens in like circumstances an equality of
légal rights, and to protect minorities and other interests not strong
enough to protect themaelves against the aggressions of the majority ;
to restrain ail injurions législative discrimination against persons and
property; to compel an equal. distribution of the burdens of govern-
ment upon every citizen, natural or corporate, coming fairly within
the purview of the law ; and to give to every one an equal right to in-
voke the remédies prescribed by law for the redress of wrongs done,
either to his person, réputation, or property. Such, we say, is the
gênerai purpose and intent of thèse constitutional provisions. The
accuracy of this interprétation is not, as we understand, questioned
by the défendants. Their contention is that railroad property is, in
many respects, peculiar in its characteristics and uses, requiring lég-
islation peculiarly adapted to them, and that to so legislate is not
within the prohibitions of the foregoing constitutional guaranties, as,
for instance, the enactment of a statute to regulate the running of
trains by railroads. We admit the contention that it is compétent
for the législature to enact laws for the government and régulation of
railroads, and that the same could not be rendered invalid because of
their non-applicability to other and dissimilar properties. But it does
not follow that the législature can enact statutes applicable as well to
other kinds of property as to railroads, and therein discriminate so as
to impose heavier burdens on one than are imposed on the other. Cer-
tainly, they cannot so distinguish as between différent railroad compan-
ies or between railroad corporations and persons operating railroads
in compétition with them. Nevertheless, the act in question, if valid,
has made this discrimination in the most direct and positive terms.
Although it professes to provide for the régulation of railroad companies
and persons operating railroads in this state ; and although both are
common carriers by rail, use the same kind of machinery and motive
power, are under equal obligations to the public and to their patrons,
and compete in business, railroad corporations are thereby burdened
with pains and penalties not imposed on persons operating railroads in
compétition with them. By the first section of the act both are de-
clared amenable to "injured parties" for the causes therein enumerated.
But the third section, prescribing penalties in favor of the state, as
hereinbefore stated, for charges made in excess of what a jury may
subsequently find in manner aforesaid and upon the basis stated, to be
more than just and reasonable compensation, or unjust and unrea-
sonable discripaination, is expressly confined to corporations. Under
this section, corporations are subject to be sued, harassed, and wor-
ried by expensive and ruinous litigation, and to the payment of the
penalties and costs therein provided, while persons operating rail-
roads in active compétition with them, engaged in the samè kind of
quasi public service and under the same obligations of fidelity and
diligence, are exempt therefrom.
LOUISVILLB & N. S. CO.r. RAILBOAD COMMISSION OF TENNESSEE. 69 i5
Another and like invidious discrimination is contained in section 13.
This section makes it the duty of the comraissioners to "oonsider and
earefully revise ali the tariffs of charges for transportation of any per-
son oï corporation owning or operating a railroad in this state," aûd if,
in their jadgment, "any such charge is more than jnst and reasonable
compensation for the service for which it is proposed to be made, or
if any such charge amoimts to unjust and unreasonable discrimina-
tion against any person, locality or corporation," the commissioners
are to "notify the person or corporation of the changes neeessary to
reduce the rate to a just and reasonable compensation, and to avoid
an unjust and unreasonable discrimination ;" and " when such changes
are made," or "when none are deemed proper and expédient, the
commissioners are to append a certificate of approval to such tariff
of charges, and in case such change" suggested by the commission
"shall not be made," or if "any charge, subsequently made, shall-
not conform thereto," said "corporation shall be held prima facie
guilty of extortion." It is corporations, and not persons operating
railroads, who are to be held prima facie guilty of extortion under this
section, and it is corporations, and corporations only, who can be
punished under its provisions, and thus it appears the act is, in its
severest features, more exacting and oppressive of corporations than
of persons operating railroads, the former being subjected to penal-
ties and to punishment from which the latter are exempt. But the
unconstitutional discrimination of this act is not confined to discrim-
ination between railroad corporations and persons operating rail-
roads, but extends to a discrimination between railroad corporations
themselves, the twenty-ninth section thereof expressly deèlaring that
"none of its provisions" shall apply to any railroad then being "con-
structed," or which might tbereatter be "begun and constructed in the
state, " until "ten years from and after its completion." Wherefore this
distinction between existing roads and roads to be thereafter built ?
If the act was a proper régulation, why not apply it to roads to be
hereafter built ? If the législature can thus draw the lîne between
différent railroads based on the date at which they were or are to be
constructed, where and at what point is législative discrimination to
cease? If the législature can thus discriminate between new and old
roads, it can assume any other arbitrary basis in support of invidious
législation, and in this way oppress one interest for the benefit of an-
other; and if it can do this, the foregoing wise and just provisions of
the state and national constitutions, intended to secure an equality of
rights to every citizen, may as well be eliminated from those sacred
instruments.
Notwithstanding the act under considération professes to regulate
railroad opérations, it, in effect, places the business of ail railroad
corporations in the state under défendants' supervision and, control.
In addition to the authority to revise their tariffs of charges, as hères-
inbefore shown, the commissioners may, for undisclosed reasona, and
696 FEDEBAL BEPORTER.
without aceountability to any one, give better rates to one corporation
than to another. And (section 17} whenever, in their judgment, "it
shall appear that repairs are necessary," or that "additional rolling
stock" is needed, or "any change of stations or station-houses," or
"any change in rates" are désirable, or "change in the mode of oper-
ating any road, and conducting its business is reasonable or ex-
pédient," the commissioners "shall give information in writing" to
the corporation of the "improvements and changes which they may
adjudge proper," etc. Thèse powers, in addition to the authority to
prescribe rates, include ail the incidents pertaining to the absolute
ownership of property. In the exercise of them the commission can
limit receipts and dicta te expenditures, insure prosperity to one Com-
pany and drive another into bankruptcy, and assume the manage-
ment and control of the business and opérations of every railroad
corporation in the state.
But the défendants say that their revisions of tariff rates and sug-
gestions in regard to the methods of conducting business are not ob-
ligatory on the railroad corporations; that the statute is advisory and
not mandatory in its terms. This is true ; upon the face of it, the
railroad companies are left to adopt or reject the rates fixed, and ig-
nore the suggestions made by the commissioners. But if they dé-
cline to conform to the rates fixed by the commissioners they do so
at the péril of subjecting themselves to a multiplioity of suits by the
state and by individuals, to be tried by juries interested in the réduc-
tion of charges, and upon the anomalous principles declared by the
act, which, by force of the prima facie effect therein given to the
ex parte action of the commissioners, reverses the presumption of in-
nocence hitherto accorded to ail défendants in criminal or quasi crim-
inal proceedings, and casts the burden of exculpation on the accused.
That such litigation will foUow is not at ail problematical ; it is cer-
tain. The authors of this statute hâve been careful to place this be-
yond doubt. It is therein made the imperative duty of the com-
missioners, in the event any railroad compafiy refuses to adopt the
rates to be prescribed by them, to instituts and prosecute a suit, as
hereinbefore stated, for every overcharge; and the juries called to
try them, will, by the express command of the statute, be compelled
to find against the défendants and assess the penalties imposed, un-
less défendants establish by affirmative proof that Us future net earn-
ings, on the arbitrary basis declared by the act, will not exceed a fair
and just return on the value of its property to be assessedfor taxation,
the jury being the exclusive judges of what a fair and just return is.
This much is expressly commanded. But "injured parties" are left
to the exercise of their own discrétion whether they will sue or not.
Nevertheless, by way of inducement, the prima facie effect given by
Ihe act to the judgment of the commissioners supplies them with the
requisite proof to sustain their actions, and, as an additional encour-
agement, the act offers ten times the amount of the damages sustained,
LOniSVlLLE & N. B. 00. V, B4ILB0AD COMMISSION OP TBNNBSSEB. 697
and a reasonable attorney's fee, to be paid by the railroad company.
No railroad company in the state oan saccesafully cope with the liti-
gation that will inevitably follow a refusai by it to conform to the
requirements of the commissioners in the partieular mentioned.
Through the indefinite terms of the statute, severity.and multiplicity
of its penalties, the impossibility of determining in advance of the
verdict of a jury in the partieular case, what is and what is not a
violation of its provisions, the power conferred or attempted to be
conferred on juries to define the offense and then inflict panishment,
coupled with the ex post facto efieni given to their verdict, involves
everything in uncertainty and commits every railroad corporation in
the state to the mercy of the commission, By the slow but certain
opération of this statute, the commission can, if they want to, grad-
ually take and appropriate ail the railroad property in the state to
the public use, without that just compensation provided for by the
constitution. In a word, the commission, under the terms of this
act, hold, in so far as railroad corporations are concerned, the issue
of life and death as in the holiow of their hands.
Of what avail, then, is the suggestion that the powers of the com-
mission are only advisory ? To whom and in relation to what is their
advice to be given? They speak to the owners of $60,000,000 of
railroad property; and, although they may speak in the most defer-
ential language, the companies to whom their gentle admonitions are
to be addressed, thoroughly understand and justiy appreeiate the un-
limited authoritv with which they are clothed by the act, the uncer-
tainties ahead, the dangers with which they are environed, and the
ruinons litigation to which they will be exposed if they décline to adopt
the suggestions made, and they will, therefore, with a lively sensé of
their utter helplessness, cravenly submit to the will of the commission,
although such submission may remotely involve the company in hope-
less insolvency. Like appréhension would continue them the ready
and flexible tools of the power thus placed over them, and the expressed
wishes of the commission would, in every instance, be accepted and
acted upon as if it was a positive command. No prescience is requi-
site to forecast the conséquences. The commission would beeome the
practieal managers of ail our railroads. They are to be elected every
two years by a popular vote. In the absence of some radical change
of party methods, the commission, to be elected from time to time,
would represent and exécute the policy of the dominant party, and,
unconsciously or intentionally, manipulate this great interest for the
benefit of the political organization to which they belong. Eailroad
property, on the successful, judicious, and just management of which
the future growth and prosperity of the state so essentially dépend,
would beeome the prey of the spoilsmen ; and an irresponsible oligar-
chy, far more dangerous to political morals and the business interests
of Tennessee than any possible railroad oombination, would be firmly
establisheù in our midst.
698 FEDBBàli BEPOSTEB.
We do not, by thèse oomments, intend to cast any imputation upon
the défendants, Tàere is nothing in this record which, in any degree,
impugns either their actions or motives. So far as we can see, they
hâve, in good faith, endeavored to perform their duties as they un-
derstand them. Our object is simply to point out the extraordinary
powers attempted to be conferred by the act, and to indicate the
large opportunities which it affords for an abuse of power and an in-
vasion of vested righta under the color of authority; how it is that
railroad organizations could be subjected to party service under its
provisions aiid be manipulated as well against as in furtheranoe of
the public interests, and to say, in the language of the suprême court
of Tennessee, in the caSe of Famsu-orth v. Vance, 2 Coldw, 108, that
"this tremendous power" does not, as we think, lurk mthin theprin-
ciples of législative power." We repeat, the regulating power of the
législature and the courts is sufficient to compel railroad companies
to perform ail their undertakings in favor of the public, and to prevent
or punish ail derelictions of duty. The législature can enact laws,
within conatitutional Umits, for the régulation of railroads and rail-
road opérations, but it cannot lawfully authorize a commission, by
direct or indirect législation intended toaccomplish thatend, orneces-
sarily involving that resuit, to take eontrol of their business and opér-
ations. Sueh législation would be an unauthorized and uneonstitu-
tional invasion of private rights. The act is also, as we think, a
régulation of Interstate commerce, and to that extent an intrusion
upon the exclusive législative authority of congress. The reasons for
this belief will, by spécial request, be stated by brother Hammond.
Other objections' to the oonstitutional validity of the statute, which
we think are entitled to grave considération, bave been urged in argu-
ment. But as those already disoussed are décisive of the case, we do
not deem it necessary to further consider or discuss them in this case.
The prayer of complainants for a preliminary injunction will be
granted.
Hammond, J. It is, in our Judgment, a grave misapprehension of
the Oranger Cases to affirm that they support the législation involved
in this controversy. Munn v. Illinois, 94 U. S. 113; Chicago, etc.. 11.
Co. v. lowa, Id. 155; Peik v, Chicago, etc., R. R. là. 16é; Chicago,
etc., R, R. v. Ackley, Id. 179; Winona, etc., R. R. v. Blake,là. 180;
Stone y. Wisconsin, Id. 181; Shields v. Ohio, 95 U. S. 319. The over-
shadowing question in those cases, obviously, was that arising out of
the claim to entire exemption from ail législative eontrol over their
business by the warehousemen and commou carriers, This claim
. they based upon the supposed inviolability of their property rights,
and the leading featnre of the décisions is that they had not been
"deprived of their property without due prooess of law" by législation
regulating the maximum of charges they might make, because they
had, like ferrymen, millers, etc., embarked their property in a busi-
LOUISVILLB & N. E. COi V. BAILROAD COMMISSION OF TENNESSEE. 699;
ness affected with a public interest, whereby it ceased tô be juris prî-
vati only. Tiie court said comparatively little upon the subject of
Interstate commerce in its relation to such législation, and it is some-
understand the language of the court on this topic, but when they
what diffioult, from the meagre report of the cases, on that point, to
are read, in the light of previous and subséquent décisions, on that es-
pecial subject, there is no difficulty whateverin reaching a full under-
standing of its meaning. The décisions amount, we think, only to
this-^-where a warehouseman or common carrier is engaged in the
storage of goods or their carriage within a atate, and exclusioely within
it, the rates of charges for such business are subject to législative con-
trol by the ^tate, and the fact that such législation ma,y indirectly and
remotely afifect commerce between the states does not invalidate it;
because, if congress h as, by reason of this indirect and remote relar
tion of such local business to interstate commerce, any right to assert
control over what is primarily domestic commerce only, it is to be
presumed, until congress acts, that it does not intend to displace the
right of the state to control its domestic commerce.
While it does not appear by the report of thèse cases, it is familiar
to ail who are informed about the gênerai character of the discussions
had over thèse questions, that the railroad companies hâve contended,
at ail times and in ail places, that there is such a necessary co-rela-
tion a^d interdependencô between domestic commerce by rail within
a state and that which is carried on among the states, and between
local and through rates of charges for transportation and compétitive
rates from more or less distant points, that local rates cannot be reg-
ulated by the several states, or any one of them, without disturbing dis-
astrously ail rates whatever, thereby seriously and directly affecting
interstate commerce. It was undoubtedly in reply to this argument
that the décisions were direeted, and there is no denying that they
close the argument and préserve the right of state control, notwith-
standing any disturbance it may occasion rates for transportation
between the states. But there is a vast différence between that prin-
ciple and the argument made hère in support of this législation, that
until congress chooses to regulate interstate commerce in respect to
rates for transportation from one to another state, the states may
regulate it, each within its own limits, It is applying the doctrine
of the suprême court, in thèse cases, to an entirely différent subject-
matter. To say that the state may regulate the rates of transporta-
tion for its domestic commerce until congress chooses to exercise any
power it may hâve over that transportation, because of its more or
less intimate connection with commerce between the states, is one
thing, and to say that ail rates of transportation on articles in tran-
sit within thé borders of the states, whether passing between two or
more states or not, concern domestic commerce, and ave pro hac vice
oubject to state control, is quite another.
700 FEDBBAIi BEPOSTEB.
One of the leamed counsel for défendants seemed to shrink from
taking this position at the argument, struggling in the face of the
plain language of the aot to Bomewhat confine its opération to local
limits, but the other, following the attorney gênerai of Illinois, in Peu-
ple V. Wabash, etc., R. IL 104 111. 476; S. G. 105 111. 236, boldly as-
sumed that until congress acts the législature may regulate ail rates
for carriage "within the state, " no matter where the carriage is to be
done, on the theory that it is the act of making the charge or rate for
transportation that the state condemns or régulâtes, and not the
transportation itself ; wherefore its effect on Interstate commerce is
only indirect. By this counsel mean — for the illustration was put to
test the argument — ^that the state may regulate charges on- a car-load
of coal coming from the Ohio river at Cincinnati, or Louisville, to
Nashville, or passing through the state to Montgomery, so long as
the régulation is confined to the charges for transportation over those
miles of the route within the boundary of Tennessee. But we do
not think this is what the suprême court means in the Oranger
Cases. It is true, counsel say this is only affecting Interstate com-
merce "incidentally," but they are driven to this because the suprême
court bas declared that it can only be so affected. But for that ex-
igency it is probable no ingenuity would suggest that the control of
compensation for the carriage of goods was not a direct control of the
carriage itself, nor that the control of a part was not as direct in its
action as the control of the whole compensation. Nor does it in the
least change this resuit to affirm that it is the act of making an un-
just charge or discrimination at which the law is aimed. What is
making the charge ? Plainly, it is simply the act of contracting for
the transportation, and the opération of the law is just as direct when
the contraot is forbidden, or regulated as to its terms, as when the
act of transportation itself is forbidden or only permitted on those
terms. It is, in fact, the most direct and, of ail régulations, the
most vital to that intercourse we call commerce, to control the com-
pensation for that transportation by which an exchange of the com-
modities is effected ; for without the transportation there can be no
exchange between différent places, and it is therefore the chief élé-
ment of interstate commerce. It is like saying the control of the cir-
culation of the blood for a space of one inch along the aortal trunk
aiïects the victim's life only "incidentally," to say that the control of
the rates of compensation of that part of a great Une of interstate
commerce, lying between the boundaries of a state, so affects that
commerce. The injury may be small, but it is none the less direct,
and not at ail incidental, because it is only slight. And, as the cir-
cuit judge well remarked at the argument, if Tennesee may control
the rates for interstate commerce within its limits, Kentucky may,
and so on until the states hâve usurped the régulation of the whole
matter. Indeed, this act of the législature seems to be grounded on
LOtnSVILLE. & N. B. 00. V. BAILBOAD COMMISSION 0? TKKNBSSBB. 701
this very notion, for we find in section 26 that the railroad commis-
sion is constituted a kind of diplomatie agency to accompliah that
purpose. It enacts :
"That it shall be the duty of the railroad commission, by correspond ence,
conventions, or otherwise, to confer with tlie railroad commissioners of other
States of the Union, and with sucli persons from states having no railroad
commissioners as the governor of such states may appoint, for tlie purpose
of agreeing, if practicable, upon a draft of statutes to be submitted to the lég-
islature of each state, which shall secure such uniform control of railroad
transportation in the several states, and from one state into or through another
state, as will best subserve the interest of trade and commerce of the whole
country ; and said commission shall include, in their annual report to the gov-
ernor, an abstract of the proceedings of any such conférence or convention . "
It was to obviate the necessity for making commercial treaties — and
in effect this section is a provision for such treaties — and to avoid the
danger, confusion, and disaster certain to resuit to commerce between
the states from this power of sovereign states over that commerce
that the exclusive power was conferred upon the fédéral government
"to regulate commerce with foreign nations, and among the several
states and with the Indian tribes." Const. art. 1, § 8. This opérâtes
as a necéssary, wise, and self-imposed limitation, upon the otherwise
sovereign power of the states over the subject. It is not a police power
in any proper sensé, and in our judgment much confusion has arisen
by so treating it in the struggle to iind some method of evading the
fédéral compact to surrender it. It belongs, it may be, to that immense
and almost inimitable residuum of governmental power which has not
been technically olassified ; but if it has been, there is no better name
for it than that by which it is known among ail nations — the commer-
cial power; or, as it is called in the constitution itself, the power to
regulate commerce. It is one of the chief functious of ail govern-
ments to promote and encourage the interehange of oommodities and
intercourse of the people among themselves and with foreign nations
and neighboring states. In the exercise of this power innumerable
laws are made, and, in matters relating to the international or inter-
state concerns of commerce, treaties and compacts are formed, of
which the fédéral constitution is, in this respect, a conspicuous ex-
ample.
If the interchange or intercourse be "within the state," it is prop-
erly called domestic commerce, if from one to another, international,
or, as to our Union, Interstate commerce ; and the government may,
and often does, where it can control at ail, under this power "to reg-
ulate commerce," control the instrumentalities of that commerce.
There are, to be sure, certain limitations on the power, as on ail its
other powers, arising out of the laws of private right and private
property ; but it is too late now to deny, in view of thèse décisions of
the suprême court, that charges for transportation are a matter of
public concern, the private property engaged being dedicated, so to
speak, to a public use, and the government may therefore exercise
702 •' '• FEDERAL EEPÔRTER.
certain législative control of thèse charges. But non constat that the
statea may, under our system of government, exercise it. If it be
domestic transportation, wholly withiiî the state, they may; nor does
it cease ,to be whoUy within because the thing transported bas corne
from without, nor because it may be destiued to go, ultimately, be-
yoûd the state; but the particular transportation forwhieh the charge
is mâde must be wholly within the state. If it be partly within and
partly without, the state cannot regulate that within and leave the
fédéral power to act on that without, but bas no control whatever
over the charges for such a transportation. It is in the very nature
pf the thing itself not local or of domestic concern, and the statea
bave no more power by such a construction or charaeterization to
regulate the rates by the uniform législation suggested by the section
of the act just quoted than they hâve to so regulate the rates of post-
age or the weights of coins. That eongress refrains from establish-
ing such uniform régulation only indicates an expression of the fed-
«ral will that the rates shall be left to regulate themselves under the
ordinary économie laws that govern the commerce between the states.
Déclamation and argument in favor of the wisdom or necessity for
some régulation are appropriate in the halls of eongress, at the bal-
lot-box, or wherever the state, as one of the fédéral units, may bring
its power to bear upon the fédéral will, but they cannot and should
■not influence the courts, state or fédéral, to évade or deny this dis-
tributive principle of our governmental power over the subjeot of
transporation as an instrumentality of commerce.
Again, to interpret the opinions of the suprême court in the Oranger
Cases, as they are by this act of the Tennessee législature and the
arguments made at the bar interpreted, is to convict the court of an
expression of the barest platitude by a déclaration, in another form,
that an act of a state législature can bave no extraterritorial force;
for it amounts to nothing more to hoid that when a car-load of mer-
chandise starts across the country from New York to New Orléans,
«ach state may, until eongress acts, regulate the charges for its trans-
portation over the rails situated in that state; because, it is appar-
ent that, whetfher eongress has acted or not, neither state could regu-
late it elsewhere, and this without the least regard to the "domestic"
or "Interstate" character of the commerce, or to the "direct" or "inci-
dental" effect upon it. Every mile of the route lies in some state,
and when each has acted successively on the transportation, whether
the action be "direct" or "incidental," and the subject-matter of it
"domestic" or "Interstate," becomes wholly immaterial, and there is
nothing left to support the force of thèse terms as used in the opin-
ions. But they are full of significance, if we observe the distinction
between a transportation that commences in one state and ends in
another aud one that commences and ends within the limits of a
single state. By this act, and the argument in support of it, ail dis-
tinctions are obliterated and ail commerce is forced to become do-
LOUISVIIiliE & N. B. CO. V. BAILEOAD COMMISSION OF TENNESSEE. 703
œestic in order that the states may act upon it. While the car-load
of goods is in New York it is domestic to that state, and so on as it
rolls over each state line to the end. The inexorable logio of the argu-
ment, therefore, is that, until congress acts, there is no such thing
as interstate commerce in the matter of the transportation of com-
modities passing in exchange between the states.
This construction ignores the most prominent prédication in the
opinions of the court on the subject of interstate commerce. In
every case of the séries aiïecting railroad transportation, the court
afîfirms with great diatinctness the analogy to the Warehouse Case, the
first of the séries. Now, the subject-matter of that case waa atorage,
which was held to be ;s'holly within the state, and therefore subject
to its régulation as to rates, and this régulation was not to be evaded
because some of the grain might hâve come from another state, and
might be destined for sale beyond it. We can scarcely imagine in-
terstate storage, and the analogy of transportation to it would be in-
complète unless the transportation involved were wholly between
points within the state, as it plainly was in the Shields Case of the
séries. But let us imagine an elevator on wheels, and engaged in
the storàge of grain while passing from one state to another. It
may be afSrmed on thèse cases, keeping the analogy in view, that
grain received and stored while passing from one point in Illinois to
another in the same state was a transaction within that state, and
subject to its control. But surely there is nothing in them to justify the
plaim that for the storage of grain received at Chicago, t» be delivered
in Détroit, the state of Illinois could regulate for the time consumed in
passing through that state, and Michigan for the time in that state.
•So, as to railroad transportation, keeping again the analogy in view,
we do not understand thèse cases to justify the claim that a state
may be measured from east to west and from north to south, as ap-
pears in argument has been done by the défendants hère, and on the
basis of distance within the state regulate the charges for ail prop-
erty and persons passing over the rails within the territorial jurisdic-
tion, but only that the state may regulate local rates on shipments
commencing within the state and ending within it, although the ar-
ticle carried may hâve come from without and be destined to go be-
yond the state, and although in this remote and indirect way inter-
state commerce may be involved. For example, a car-load of mer-
chandise shipped at Nashville to Memphis, on a route wholly within
the state, may hâve come from LouisvÛle and may be intended to be
sent from Memphis into Arkansas, without afïecting the state's power
of régulation, but it does not foUow if it came from Eichmond via
Nashville or Memphis en route to Arkansas, or to Nashville or Mem-
phis, that the state would hâve the same power of regulating rates
on the distance traveled within the state ; and this is the important
distinction which this act overlooks.
70é FEDEBAL BEPOETER.
The court does not say in thèse Oranger Cases, and bas not else-
where definitely determined, that congress can ever oontrol or reg-
ulate local rates for domestic transportation, as -we hâve above de-
scribed it, by reason of any remote or indirect influence such rég-
ulation may hâve on Interstate commerce, but it does say that until
congress assumes that power the states may continue their control.
This view of thèse cases carries out the analogy to storage in a ware-
honse, and no other is consistent with it. Any argument which dis-
regards this pre-eminently distinctive and descriptive analogy that is
the very foundation stone of the opinions in the railroad cases of the
séries, does the cases injustice and puts them in irreconcilable oon-
flict with every décision the court bas made on the subject of Inter-
state commerce, while the construction we give them préserves their
harmony with the others. It is proper to remark hère that, for the
purposes of this judgment, we deem it unimportant to détermine
whetber any particular transportation is to dérive its character of
locality or domesticity from the status of the road over which it passes
as lying and having its légal existence only within the state, — in
which case ail transportation over it might fall within the définition
of domestic commerce, — or from the nature of the contract for a car-
nage which, by its terms, begins and ends at poihts within the state,
without any regard to the statm of the road. This act makes no dis-
tinctions in either aspect of this question, and is equally détective
whichever view we take of it, and this whether either or both be
correct. Moreover, neither of the plaintiff's roads in the cases we
are deciding is local or domestic in the sensé above described.
This opinion would be unpardonably incomplète if we did not, in
view of the magnitude of the interests hère involved, justify our judg-
ment by a careful examination of the adjudications above construed.
In the lowa case it does not appear what particular acts of transpor-
tation, if any, were involved. It was an injunction bill by the rail-
road Company to enjoin the prosecution of suita against it; whether
those only threatened or already brought does not appear. The opin-
ion is mainly devoted to other questions ; but, although there were two
railroads connected by a bridge and making, in one sensé, a contin-
uons line between two states, and, in that sensé, engaged in Interstate
as well as state commerce, we hâve the authority of the opinion itself
that the plaintiff's roads, "like the warehouse, is situated within the
limits of a single state. Its business is carried on there and its régu-
lation is a matter of domestic concern." This being so, ail transpor-
tation upon it was, in a légal sensé, exclusively within the state, and
it mattered not that the goods or passengers had come from another
state or where they were destined — the transportation was wholly do-
mestic, and the analogy to the storage of grain is complète. It was
a local road leased by a foreign corporation, and in contemplation of
the opinion, ail transportation over it was essentially domestic, and
IiODISVILLE & N.n. CO. V, BA.n/BOA.D COMMISSION OF TBNNBS8BB. 705
its inter State commerce was such only in the indirect way in which
the grain elevator was engaged in like commerce.
We hâve the authority of the suprême court of lowa for this con-
struction, in a décision made long afterwards, declaring the lowa act
uneonstitutional, as an attempt to regulate interstate commerce.
Says that court :
"The cases o£ State v. Munn, 94 IT. S. 113, etc., (citing them,) ^o not ap-
pear to us to sanction the validity of acts of the state législature regulating
tbe transportation of freight and passengers between the states. They
merely détermine the power of the states to fix reasonable warehouse charges,
and reasonable charges for transportation of freight within the bounclaries of
the states, respectively, and that, when such power is exercised, although iC
may incidentally affeet commerce between the states, yet the laws of the state
are not régulations of Interstate commerce because of such incidental re-
sults. That it was not intended in those cases to uphold législation like that
under considération in this case it appeara to ns is conclusively shown by the
reasoning in the later cases of Sali v. De Cuir, 95 U. S. 485, and Railroad
Oo. V. Hxism, Id. 465." Carton v. Ulinois Cent. R. Co. 59 lowa, 148, 153;
S. 0. 13 N. W. Rep. 69; S. G. 22 Amer. Law Reg. 373, and note.
That was a case of the continuons shipment of car-Ioads of wheat
from Ackley, lowa, to Chicago, Illinois, and a daim for conformity
to the rates established by the state act for so much of the distance
as lay in lowa, and the act was held a violation of the commerce
clause of the fédéral constitution.
In the Wisconsin case, the next in the séries of the Granger Cases,
the court mainly deals again with what were evidently considered by
ail more important questions. Circuit Judge Drummond tells us the
question we are considering was scarcely argued at ail in the court
below, and evidently it was only incidentally considered in the su-
prême court. Piek v. Railroad Co. 6 Biss. 177. The Wisconsin act,
unlike ours, contained an exception which excluded from its opéra-
tion ail rates of charges for "carrying freight which cornes from be-
yond the boundaries of the state and to be carried across or through
the state." Possibly, notwithstanding its terms, the act may hâve
béen construed, within the purview of this exception, not to apply to
persons and property coming from other states into Wisconsin, or
going from that into other states, which was not thought, however,
to be its construction in the court below, though the question whether
it could 80 apply under the State Freight 'Fax Cases, 15 Wall. 232,
was reserved, and not decided in that court. The opinion of the
suprême court says :
"The iaw is conflned to state commerce or such interstate commerce as di-
rectly affects the people of Wisconsin. Until congress acts in référence to
the relations of this company to interstate commerce it is certainly within
the power of Wisconsin to regulate its fares, etc., so far as they are of do-
mestie concern. With the people of Wisconsin this company bas domestic
relations. Incidentally, thèse may reach beyond the state. But certainly,
until congress undertakes to legislate for those who are without the state,
Wisconsin may provide for those within, even though it may indirectly af-
feet those without."
V.19,no.l0— 45
706 jrXDZBlIi SK70BTBB.
Now, strange to say, the bill in that case attacked the law becauae
the exemption we hâve notioed was itself a régulation of Interstate
commerce, on the tbeory, perhaps, that it gave an advantage to the
citizens of the state over those of other states, which is sometimes
applied as a test to détermine whetber a given law be a régulation of
Interstate commerce. But whetber the court had the exemption sec-
tion of the Wisconsin act in view, and construed the act in référence
to it, is not satisfactorily shown. If, however, we turn to the report
of the case to see what is meant by "this company" having "domes-
tic relations" with the people of Wisconsin, the analogy of the ware-
bouse case reappears, though not as distinctly as in the other cases.
No particular freight charges were involved in the eontroversy, it be-
ing a bill by bondbolders and stockholders to ènjoin the company
from obédience to, and therailroad oommissioners from enforcing, the
act, and altbough this Wisconsin company had been Consolidated with
an Illinois corporation, the court is at the greatest pains to show that
it had not ceased by that consolidation to be, in a légal sensé, a Ipoal
road, as the lowa road had just been held to be. Counsel say in ar-
gument hère that this was for another purpose in the opinion, which
is true, but it is as potential for one purpose as another, and the opin-
ion in the language quoted so treats it by Connecting the "domestie re-
lations" of "this company" with the people of Wisconsin to this sub-
ject of Interstate commerce. There is certainly nothing in the case
to show specifically that the court held, as we are asked to hold., that
a state may regulate fares and freights, for carriage befcween two or
more states, over that portion of the route lying in that state. This
construction is purely an inference drawn by those who claim it. We
freely admit that, looking alone to this séries of cases, and ignoring
ail others ou the subject of Interstate commerce, the construction we
are giving tbem is somewhat inferential, but it seems to us the faîr-
est and most reasonable. And this more clearly appears by référ-
ence to the report of this case in the court below, and to that of a
eontemporaneous case under the same statute in the state courts of
Wisconsin, in which the pleadings and argument are more f uUy shown.
Atty. Gen. v. Railroad Co. 35 Wis. 425, 449, 453, 470, 478, 484,485,
511. The court below complained that the case, now under analy-
sis, wàs scarcely argued on this point, and for that reason refused to
consider it, while in the court above it was thought of so little rela-
tive importance that the dissenting opinions do not notice it, and the
court disposes of it in a comparatively few Unes. And yet, the mis-
conception of thèse Oranger Cases, which we are seeking to remove,
is undoubtedly the foundation of a belief in the power of the states
to legislate, as this act does, without limitation or qualification.
In the next case of the séries, the particular charactjerof the trans-
portation involved is not shown, and it is of no importance on this
subject,- nor do the next two, shed any further light on it, except by
the constant référence to the Warehouse Case. But when we corne
liOUISVILLE & N. R. CO. ». BAILEOAD COMMISSION OF TENNKSSEB. 70^
to the Ohio case, generally elassed as one of the séries, we find for
the first time that the particular act of transportation is gîven, and
that it commenced and ended within the state. Going baek to the
Warehouse Case, we find that the language of the court on this subject
of Interstate commerce seema to hâve been selected with a purpose
to use the case for convenience as an analogy in the subséquent cases
affecting railroads. The court says : "The warehousesof thèse plain-
tiffs in error are situated and their business carried on exclusively
within the limita of the State of Illinois." They are likened to the
carts and drays transferring grain from one railroad station to aur
other, and their instrumentality in interstate commerce is said to be
incidental. Certainly, this cannot be said of either of the roads in the
cases we bave in hand. One plaintiff is a Kentuoky corporation, ex-
tending its road into this state by license of dur own laws, presuma-
bly, for the primary purpose of interstate commerce. Louisville é
N. R. Go. V. Henry Go., (unreported,) by Baxteh, J. ; Gallahan v. Louis-
ville ê N. R. Go. 11 Fbd. Eep. 536, by Key, J. The other road, as
shown by the bill, extends into Georgia, Alabama, and Mississippi,
and in no sensé can they be said to be carrying on their business ex-
clusively within the limits of a single state. They are not like ware-
houses, carts, and drays, or purely local roads engaged incidentally
in interstate commerce, but are great arteries of intercourse and
transportation with neighboring states — as much so as the Tennessee,
Cumberland, or Mississippi rivers. The analogy wholly fails unlesa
wo limit the régulation, which this act does not prétend to do, to
purely local transportation commencing and ceasing at points within
the state ; and, even then, it may be donbtful, on thèse Granger Gases,
whether the analogy they establish would apply, unless the roads were
local in the sensé the roads in those cases were held to be, which
point we need not détermine, as the act itself makes no distinction.
Turning now from the Oranger Gases to others, and this interpré-
tation of them beoomes so plainly the correct one that it seems im-
possible to resist the conviction that they hâve been misunderstood
in the reliance placed upon them to support this act. It was held in
the State Fre'ight Tax Case, 15 Wall. 232, that the transportation,
whether by land or water, of commodities from one state to another
was interstate commerce, and the prominent idea of such commerce
in the minds of the framers.of our fédéral constitution; that its di-
rect régulation is exclusively within the control of congress ; that when
the subjects of régulation are in their nature national, or admit of
uniform régulation, that fact demonstrates the exclusive power of con-
gress over them; and that the state cannot, even in the exercise of
itstaxing power, jeopardize the freedom of transportation between
the states. That the régulation of rates of charges for such trans-
portation does admit of uniformity, cannot be denied, and certainly
not by the advocates of the power to pass this act, since it providep
for such uniform régulation by inviting and promoting separate ao-
708 FEDEBAIi BEPOBTEB.
tion by ail tlie states in the manner therein pointed out. And, if the
state may not, by the exercise of its taxing power, interfère with the
freedom of inter-state commerce, under what power can it act more
potentially? Again, if a tax upon a commodity in transit between
the states be a direct interférence with the freedom of the transporta-
tion, can it possibly be said that an act whioh forbids the carriage by
punishing the carrier unless he compiles with certain prescribed con-
ditions is anyless direct in its action? We think not. The Granger
Cases and that just cited may be harmoniously reconciled, understood
as we hâve interpreted them, but not as the défendants' counsel and
the framers of this act hâve construed them.
The Daniel Bail Case, 10 Wall. 557, and the Montello Case, 11 Wall.
411, S. G. 20 Wall. 439, are very clear illustrations of the force and
effect of the situs of an' instrumentality of commerce in determining
whether the subject-matter of the given régulation be one of domes-
tic concern only incidentally conneoted with Interstate commerce, or
a direct instrumentality of that commerce itself, and in the ârst
case is a complète and careful définition of "commerce between the
states" and the power of congress over it. We had intended to quote
extensively from the opinion, because, more than any other perhaps,
it explains the language used in the Oranger Cases, but since it would
prolong this opinion we forbear, and simply invite a careful scrutiny
of the case. The distinctions are there pointed out between the do-
mestic commerce, whioh the states may regulate as well as its agen-
cies, and that Interstate commerce whicb, as to itself, they cannot
regulate at ail, directly nor indirectly, incidentally or other wise,
whether congress bas acted or not ; but as to the agencies of which, un-
til congress acts, there is left to the states almost inimitable control
in any department of governmental power, so long as such control af-
fecta the commerce itself only incidentally, and does not directly in-
terfère with its freedom. This is the thing secured by the constitu-
tional provision, which is really a treaty or compact for absolute free
trade between the states, subject to such uniform régulations as con-
gress alone may impose. And it is doubfcful if congress itself could
impose one rate for Tennessee and différent rates for the other states,
as separate action by the states must do.
In another case the suprême court says :
"The fact that congress bas not seen fit to prescribeany spécifie ruies to
govern Interstate commerce does not affect the question. Its inaction on
tliis subject, when considered with référence to its législation with respect to
foreign commerce, is équivalent to a déclaration that Interstate commerce
shall be free and untrammeled." Welton v. Missouri, 91 U. S, 275, 282.
It is to be noticed in the Daniel Bail and Montello Cases, supra,
that there was no question involving the commerce itself, but only an
instrumentality of it, namely, a steam-boat; the inquiry being whether
it was subject to the navigation laws of the United States, and its so-
lution depending on whether Grand Eapid and Fox rivers were do-
IiOUISVILLE A N. B. 00. V. BAILROAO COUMIBSION OF TENNESSEE. 709
mestîc in the sensé that they lay excluaively — like the railroads, in
the Oranger Cases — within the limits of a single state. It was found
— and it is worthy of remark that one of them was artificially made
80, like railroads — that thèse rivers were, as a geographical fact, not
domestic, but interstate rivers, (if they may be so oalled,) and that the
steam-boats were within the power of congress. But had the fact
been the other way, as in the Oranger Cases, the resuit would hâve
been the same, so far as the power of congress was concerned, be-
cause it was shown that the boats were aetually carrying goods be-
tween the states, and this fact would support the power of congress,
which had acted as to steam-boats so engaged. This was plainly in-
timated, if not decided. The power of congress to regulate such an
instrumentality of commerce 18 practically unlimited, because it may
reach the commerce itself as well as its agencies ; wherefore, there is
no need to look to the cbaracter of the régulation in determining the
power, but only to the cbaracter of the commerce. But when we
turn to the power of the states, we must necessarily scrutinize both.
The définition of interstate commerce, as given in thèse cases, does
not change; it is fixed whether congress has acted or has not acted,
and the real question, as to the states, always is twofold, — does the
proposed law act upon the commerce itself, or does it act only on the
instrumentality? If the first, it is always void; if the second, its va-
lidity dépends on the circumstances. Hère lies the fallacy of this
and ail législation, which overlooks the not always broad distinction
between regulating the commerce itself and its instrumentalities, and
we hâve the authority of the suprême court in the next case cited for
. saying it is often disregarded. We quote again :
"Commerce with forelgn countries and among the states, strictly consid-
ered, consists of intercourse and trafflc, including in thèse terms navigation,
and the transportation and transit of persons and property, as well as the
purchase, sale, and exchange of commodities. For the régulation of commerce
as thus deflned there can be only one System of rules applicable alike to the
whole country, and the authority which can act for the whole country can
alone adopt such a System. Action upon it by separate states is not, there-
fore, permissible. Language afHrming the exclusiveness of the great power
over commerce as thus deflned may not be inaccurate, when it would be so
if applied to législation upon subjects which are merely auxiliary to com-
merce." Mobile Co. v. Kimhall, 102 U. S. 691, 702.
Can anything be more explicit than this, and does it not apply to
this législative act? The court has repeatedly said, as hère, that the
transportation of the commodity exchanged is a part of the commerce
itself; and if the transit be between two or more states, it is, ex vi ter-
mini, interstate transportation and interstate commerce. Being so,
does not any law which controls the price of the transportation, or re-
stricts it under pains and penalties, affect the commerce itself, and
this as directly as possible ? It is a delusion to call such a law a rég-
ulation of the instrumentality, and the delusion is not concealed by
naming the process a régulation of railroads or corporations or mo-
710 PEDEEAIi 8EP0BTEB. . ..:
nopolies, nor yet by decryiûg thèse as instramentalities -wbich need
régulation, as no doubt they often do in this regard. It is the instru-
mentality by whioh we reach that intangible thing called commerce,
and in that sensé the instrumentality, and not the commerce, is al-
ways regulated ; but this confuses the distinction above adverted toby
the suprême court.
To illustrate again, take a person engaged in interstate commerce
as a carrier on océan, river, railroad, or highway. If he or his agents
be found within the limits of any state yiolating its laws, he may be
arrested and imprisoned; if bis property fall under condemnation of
the law, it may be seized, although engaged in the commerce; he,
his agents and property, and even bis receipts for the freight, may be
taxed, as well as any spécial franchise or privilège enjoyed by him,
if thèse taxes be not disguised régulations of commerce. State Tax
Gross Receipts Case, 15 Wall. 284; Memphis é L. R. B. Go. v. Nolan,
14 Fed. Ebp. 532. By thèse and numerous other laws the commerce
may be incidentally affected, even to destruction in some cases, through
opération upon the instramentaUty or agency alone; and where the
carrier is a corporation, there are extended fields for such opération.
But if the carrier in the illustration is engaged in domestic com-
merce, where the state can act directly upon it, the capacity for affect-
ing the articles of interstate commerce which may fall into his
hands to be locally transported is increased ; but the effect on inter-
state commerce is still inoidental, and although the parfcicular régu-
lation ceases to act on the instrumentality alone, but acts directly on
the state commerce itself, yet the distinction between a direct action
upon the interstate commerce, and an incidental effect upon it through
action upoD the instrumentality, remains obvious ; for, in such a case,
the domestic transportation is itself only an instrumentality, agency,
or auxiliary of the interstate commerce, which, uutil congress act,
remains subject to state oontrol. This distinction must be observed
in determining what is incidental only in its action on interstate com-
merce and what is direct; and it runs through ail the cases. But
when a plain and unmistakable case of direct action on the commerce
itself is presented, — as ail régulations or restrictions on the contraet
of transportation must be, — ail that need be looked to is the character
of the commerce so regulated, and if it be interstate transportation,
as definod in the cases cited, régulation or restriction by the state is
void. If, for example, as in Hall v. De Cuir, 95 U. S. 485, the state,
exercising its power to secure equal civil rights in the matter of trans-
portation, undertakes to prescribe the privilèges a passenger shall en-
joy, it is void, although congress bas not acted upon that matter, and
the passenger be going only between points in the same state. If,
again, the state undertake, beyond the scope of vital neceasity, to.ex-
clude or regulate the entrance of diseased cattle into the state, it is void.
Railroad Go. v. Husen, 95 U. S. 465. And if, under the disguise of an
inspection law — the power of inspection being especially reserved to
LOUIBVILI.B & N. B. CO. V. BAHjEOAD COMMISSION OP TENNESSEE. 711
the states in the fédéral constitution — the state atterrïpt' to exclude or
regulate the introduction of passengers tbought to be paupers, crimi-
nals, etc., it is vbid. People r. Co. Gen. Transatlantique, 107 TJ. S:
59; S. C. 2 Sup. Ot. Eep. 87. And thèse examples migbt be mul-
tiplied.
It does not advance the argument to invoke tbe police power of the
state to support tbis act of tbe législature; for, with noticeable em-
phasis, it is beld in tbe last two cases cited, as evérywhere, that
neither in the exercise of its police nor any other power, can the state
make a law whicb is in effect a régulation of interstate commerce.
Nor does an appeal to the power of the state over the corporations of
its own création strengthen the argument; for it cannot, by the char-
ters tbemsélves, make régulations of interstate conimerce. Sucb
régulation is as void tbëre as elsewhere. Telegraph Gases, 96 U. S.
1. If control over tbe rates be desired by the state linder ail cir-
cumstances, it might possibly secure' it by profaibiting its corpora-
tions from engaging in interstate commerce in any other way than
as domestic roads, and confining them absolutely to the business of
transpdrtation within tbe state, if tbis would not of itself be an in-
valid prohibition as a discrimination against interstate commerce.
Possibly, when incorporators ask a grant of franchises to enable the
company to engage in interstate commerce, and, in considération of
the grant, agrée not to charge more tban a certain maximum, or to
establisb a certain scbedule of rates for the trasportation of com-
modities carried in sucb commerce, they would be bound by it; but
not, be it remembered, because tbere bas been a lawful exercise by
the state of a municipal power to prescribe sucb rates, — for tba,t
would be none the less a régulation of interstate commerce, and as
sitch void, — ^but because the. incorporators, as owners, with power, in
the absence of paramouni régulation by law, to prescribe their own
rates, hâve established thèse. Consensus facit jus.
It is obvions, however, in such a case, that the contraot cannot be
subsequently changed qua contract without the consent of both par-
ties, and the remédies for its violation would be those available for a
breach of the contract; and where, in the absence of congressional lég-
islation, the consent of the carrier is wanting to any change in the
charter, it is inoperative to bind him, not so much because the légis-
lature cannot impair the obligation of a contract as because, without
bis consent as owner, there can be no régulation at ail by state lég-
islation. It béing in such case a matter of contract simply, and not
of municipal law to regulate the rates, there can grow out of it no en-
larged power over interstate commerce, whatever else may grow there-
from. The act qua a régulation of interstate commerce isasinvalid
in the charter of a transportation company as elsewhere in any stat-
ute, and necessarily as invalid in any subséquent statute, no matter
how f ull the réservation of power over the charter may bave been made.
712 FEDERAL EEPOBTBB.
We need not say that, as to the power to regulate the domestic or
local commerce of the company chartered, other principles may corne
into play. There is no doubt that the fact that our railroads, until
récent years, and before the day of consolidations, oombinationa, trunk
lines, and continnous rails were regarded as purely local institutions,
beginning and ending -within the boundaries of a single state, and the
further fact that they were ail owned by corporations whose migra-
tory capacity was limited and almost denied, hâve doue much to in-
tensify the notion of their still being mère local agencies of commerce.
But by active state législation had for the purpose they hâve now, for
the most part, become continuons avenues of commerce among the
states, svreeping over state lines as easily as the Mississippi river rolls
along them, and stretching quite as far. We do not see why this fact
should not hâve the same influence it had in Hall y. De Cuir, supra,
and the other cases, and vrhich was suggested by Mr. Justice Miller
in Gray v. Clinton Bridge, 7 Amer. Lavr Reg. (N. S.) 149.
The suprême court of lowa denied validity to the law of that state
on the same ground we take, as did also the circuit court of the United
States for that state. Canton v. Illinois Cent. B.Co., supra ; Kaeiser v.
Illinois Cent. R. Co. 18 Fed. Rep. 151 . The case of Georgia R. R.
V. Com'rs, (not yet reported,) did not touch tbjs question, nor does the
case in the circuit court of the United States for that state mention
it. Tilley v. Bailroad Com'rs, 4 Woods, 427; S. C. 5 Fed. Eep. 641.
The scope and extent of the prineiple we are enforcing with the
distinctions we hâve endeavored to point out between the character-
istics of fédéral power over commerce between the states, and the
domestic power of the state over the instrumentalities thereof found
within its borders, find an illustration in the power of the fédéral
congress, on the one hand, over canals owned and constructed by the
state itself, and wholly within it, and on the other, of the state legis-
lature over ships and watercraft in the establishment of liens for
domestic supplies fumished in the home port. In re Boyer, 3 Sup.
et. Eep. 434; The B. é C. 18 Fed. Rep. 543; Escanaha Co. v. Ghi-
cago, 107 U. S. 678; S. C. 2 Sup. Ct, Rep. 185; The Lottawanna, 21
Wall. 558; The Illinois, 2 Flippin, 383.
It is not neoessary to go into any more elaborate examination of
the cases in the suprême court on this particular subjeetof interstate
commerce, for we are relieved of that neoessity by an eminent writer,
■T'ho bas, by his thorough and superior authorship, distinguished
himself above the mère book-makers of this day. He bas carefuUy
examined and classified the cases in a useful manner, and evidently
laments that he cannot find in the rulings of the court any larger ju-
risdiction for the states over this subject of Interstate commerce than
he thinks they establish. The cases since Mr. Pomeroy wrote will be
cited in a foot-note to this opinion for oonvenience of consultation.
4 South. Law Eev. (N. S.) 357. See, also, 7 South. Law Rev. 377; 3
LOUISVILLB & N. B. CO. V. BAILROAD COMMISSION OF TENNESSEE. 713
South. Law Eev. (0. S.) 656; 13 Amer. Law Eeg. (N. S.) 1, 1S5; 23
Amer. Law Eeg. 81; 12 West, Jur. 17; 12 Cent. Law J. 19é; Pierce,
K. R. 468.
The whole list, from Gibbons v. Ogden, 9 Wheat. 1, and Brown v.
Maryland, 12 Wheat. 419, to the latest, point with reasonable cer-
tainty to the line between valid and invalid législation by the states.
The Oranger Cases must take their places in this line and conform to
it, for there'is not the least indication of any purpose to overrule the
other cases, and an abundant manifestation in subséquent cases oî
adhérence to them. They show that the states may tax, inspect, po-
lice, and in other abundant ways, by the exercise of any kind of power
they possess, regulate the agenciesand instrumentalities of Interstate
commerce; they may dig canals, build railroads, improve rivei-s and
harbors, establish ferries, build wharves, construot dams and bridges,
and control pilotage; or they may authorize persons and corporations
to do thèse things, and regulate them after they are çonatructeà or
established; but neither in their taxation, their inspection, their po-
licing, or other exercise of power, can they by their régulations act
directly on the commerce, as thèse cases define it, between the states.
As to that, until congress acts, the commerce must be free.
We do not overlook the argument that this act leaves the carriers
free to charge what they please, so long as it is not unreasonable and
unjust. Nevertheless it prescribes régulations for determiningwhat
is unreasonable and unjust, based on an assumed power Qver the sub-
ject whioh we hâve endeavored to show does not exist. The charac-
ter of the régulation is immaterial where you cannot regulate at ail.
Carriers cannot charge more than is reasonable and just, but if there
be needed any législation to more effectively détermine what is un-
reasonable and unjust, and to prevent discrimination, it must come
from congress in cases like this. We hold, without the least hésita-
tion, after this examination of the subject, thàt an act of the législa-
ture whieh attempts, as this does, to regulate, no matter how, ail
transportation over the railroads in this state, and to revise ail tariffs
of charges for transportation over those roads, is, so far as it relates
to the plaintiffs in thèse cases before us, an attempt to control the
compensation to be charged by them for the transportation of com-
modities and persons in transit between two or more states, for that
portion of the route lying within this state, and therefore invalid as
a régulation of Interstate commerce, acting, as it does, in the most
direct way possible on that commerce itself. This act makes no dis-
criminations whatever in this regard, and we cannot, by judicial ac-
tion, insert them in the act by limiting our injunction in respect of
the interférence of défendants with the charges by plaintiffs for fîires
and freights in any way. This would be to legislate by judicial de-
cree, for there is nothing in the act to guide us in âxing our limi-
tations. It does not appear that the législature would bave passed
this law, or any law, conâning its power as we bave suggested it is
714 FEDEBAIi REPOBTER.
confined by the fédéral constitution, or the interprétation wo tiere
give that instrument. If the législature cannot legislate as it has
proposed to do, we do not know that it wishes to legislate at ail.
Cooley, Const. Lim. (4th Ed.) 214-219; Packet Co. v. Keokuk, 95 U.
S. 80 ; Neelyy. State, é Baxt. 174. Hence, we must take the statute
as we find it, and restrain the défendants f rom any action under it as
to thèse plaintiffs.
There are other grounds of fatal objection to this législation which
hâve been stated by the learned circuit judge in which we ail concur;
and other questions hâve been ably argued by connsel, but we do not
deem it essential to express any opinion on them because their dé-
termination, either way, would not affect our décision on this mo-
tion.
Consult Tumer v. Maryland, 107 U. S. 38; S.-C. 2 Sup. Ct. Rep. 44; People
V. Oo. Gen. Transatlantique. 107 U. S. 59; S. C. 2 Sup. Ct. Kep. 87; Wig-
gins V. East 8t. Lmiis, 107 U. S. 365; S. C. 2 Sup. Ct. Rep. 257; Tramp.
Oo. V. Parkeraburg, 107 U. S. 691; 8. C 2 Sup. Ct. Rep. 732; Telegraph Oo.
V. Teoea^, 105 TJ. S. 460; Bridge Co. v. JJ, S. Id. 470; Paoket Co. v. Catletts-
burg, Id. 559; Webber v. Virginia, 103 TJ. 8. B4A; Tiernan v. Rinker, 102
U. S. 123; Lord v. Steamship Co. Id. 541; Vicksburg v. Tobin, 100 U. S.
430; Packet Co. y. St. Louis, ld.4:2â; ffuyv. Baltimore, li.iSi; MaohirïeOo.
y. Gage, Id. 676; Trade^mark Cases, Id. 82; Transp. Oo. v. Wheeling, 99 U.
S. 273; Béer Oo. v. Massachusetts, 97 U. S. 25; Cook v. Penmylvania, Id.
566; The Telegraph Case, 96 U. S. 1.
Key, J. I hâve not thought it necessary to prépare any opinion
in thèse cases, and am content to announce that I concur in the
opinions justread. .
Estes and others v. Spain and others.
[District Cowt, 2f. D. Mississippi, W. D. March 3, 1884.)
DeED OF ASSIGKMÈÎTT BT InSOLVENT— VaLIDITT— BURDEK OF PrOOF. '
A deed of assignment prima fane good may be impeached for circuihstanbes
connected with, and conduct of the insolvent at and about the time of, the ex-
écution of it. In such cases the burden of proof ia on the grautor or his bene-
flciaries under the assignment to show the validity of the deed.
In Bquity.
R. H. Taylor, J. G. Hall, and Duke Wright, for complainanfs.
Sullivan é SulUvan and EJ Mayes, for défendants.
HiLL, J. This clause is submitted to the court upon bill, answers,
exhibits, and pirôofs^ from wMoh the following facts appear:
S. H. Gunter, à tiiérchaiit of the towh of Sardis, in this stàte, was, on the
twenty-flfth day bf Màfch, 1882, largély indebted to the complainànts, apd
other merohanta,-^a humber of whom aremade défendants to tlm bill,— and
on that day executed a deed o£ gênerai assignment, purporting to conyey ail
ESTES V. SPAIN. TiS
of his property, real and personal, and ail his notes, books of account.îand
other assets of every description, to S. G. Spain, as trustée, for the purpose,of
paying his debts, which, it is admitted on the face of the assignment, lie was
unable to pay in full, reserving, however, from the conveyance the property
owned by Mm exempt by law from exécution and sale, a schedule of which is
given. Soon before, and about the same time, said Gunter executed another
conveyance, conveying to J. B. Boothe, as trustée, certain real estate de-
scribed therein, to secure and save harmless his aureties upon a note wliich
he owed to the Sardia Bank; and at or about the same time said Gunter
transferred and delivered to a number of his clerks and employés certain
notes and accounts in payment of analleged iudebtedness to them ; and shortly
before this time, and at a time when, from the proof, he contemplated con-
veying away and dispossessing bimself of ail his visible means, he delivered
tohis wife the sum of $900 in payment of au alleged indebtedness to her for
money which it is claimed by him he received from the estate of his wife's
grandfather, and belonging to his wife, in the year 1858. Within a short time
after thèse conveyances were made and money paid, défendants Bickham and
Moore, and other creditors, sued out attachmeuts in this court and caused the
same to be levied by the marshal on the goods and assets in the hands and
possession of said Spain, the trustée to whom they had been delivered under
the assignment. Complainants, who are by far the largest creditors, who are
preferred under the assignment, filed this bill, alleging, among other things,
that the assignée was unwilling further to exécute the trust conferred upon
him by said assignment, and had abandoned the same; that the amount of
the debts upon which attachments had been levied upon the property far ex-
ceeded its value, and thatunless the trustée, or some one else interested, would
give a claimant's bond, the property would be sold at a great sacrifice; and
alleged that the assignment executed to said Spain was made in good faith,
valid, andablndingsecurityîor thedebtdue to complainants; and praysthat
thèse attaching creditors be enjoined from proceeding further with their said
attachment suit; that said deed of assignment be, by decree of this court, de-
clared a valid assignment; and that a trustée or assignée be appointed to exé-
cute the trusts created by it, in the room and stead of said Spain, the assignée
therein.
The answers deny that the assigament was made in good faith,
and is a valid and légal transfer of the property and assets therein
conveyed for the purposes expressed, as againat the défendants, who
were creditors of the assigner before the assignment was made, and
deny that complainants are entitled to the relief prayed for in their
bill. The question of the validity of the assignment is the main
question to be determined. If there is any provision on the face of
the assignment, or if there is any provision wanting in it, which
renders it fraudulent and void in law, or if the facts as shown by the
évidence show a purpose on the part of the granter to reserve a ben-
efit to himself, or to hinder or delay his creditors, or any of them, in
the collection of their debts, then the assignment must be declared
fraudulent and void and the bill dismissed. As the debt due complain-
ants is an antécédent debt, under the well-settled raie in this state,
they or the assignée do not occupy the position of a bonafide pur-
ehaser withoot notice; so that if the assignment is fraudulent and
void for any reason, as against the grantor, the benefieiaries under it
can take nothing by it.
716 FEDEBAL EEPOETER,
The first question to be considered is, does the assignment on its
face oontain any provision, or omit any provision, which, in its effect,
will or may hinder and delay the grantor's creditors, or work an injury
to them, not sanctioned by law ? The assignment was evidently drawn
by a skillful lawyer, with unusual care, and most of the provisions and
omissions which are most usnally relied upon and sustained in holding
such conveyances fraudaient and void are in this assignment avoided,
and at first view there would appear no objection to it, appearing on its
face. The clause in the assignment providing for the disposition of the
moneys arising from the collection of debts and the sale of property,
after providing for the payment of the costs and expenses of execut
ing the trust, and for the payment of the preferred creditors, pro-
vides that the supplies, if any, shall be paid pro rata to the unsecured
creditors, whose names are given and the amount due to each, a-
stated in a sohedule annexed to the assignment, and made part of it
and to any other creditors who are omitted therefrom, but does noi
mention a time in which thèse omitted creditors shall présent theii
claims, nor the mode in which they shall be established. The assignée
is directed to make the distribution with convenient speed, but fixe;
no limit of time in which it should be done. It is insisted by défend
ants' ooiinsel that thèse omissions leave it to the discrétion of thi
assignée, who is the assignor's confidential friend, former book-keepei
and wife's présent partner, to postpone the distribution to an indefi
nite period, and to the delay and hinderance of the creditors in collecl-
ing their debts.
It has been held by the suprême court of this state in the case of
Mayer v. Shields é Mulhallan, 59 Miss. 107, and by this court in the
récent case of Bickham é Moore v. Lake é Àiistin, that, whenever, iîi
a gênerai deed of assignment by an insolvent debtor, it is required
that Bomething must be done by the debtor in order to participate in
the funds, that a reasonable time, not too long nor too short, must
be given, in which to do the thing required to be done, and that the
want of such a provision will enable the assignée to unduly postpone
the distribution to the hinderance and delayof thecreditors, and thereby
render the assignment in law fraudulent and void. In this case noth-
ing is required of the omitted creditors to be done in order to partici-
pate in the funds to be distributed, and it is a matter of some doubt
whether thîg defect alone rendors the conveyance void ; but thèse omis-
sions are oiroumstanoes to be taken in connection with the proof in
the cause to détermine whether or not there existed fraud, in fact, in
the exécution of the assignment. The assignment further provides
that if any property or debts hâve been inadvertently or by mistake
omitted, the assignées shall place them upon the proper schedules ;
and this, it is daimed, renders the assignment void. The indebted-
ness mentioned means the debts due to the assigner, and not those
due by him, and this provision was right and proper, and could not
in any way préjudice the creditors; but the contrary.
ESTES V. SPAIN. 717
Admîtting the assignment to contain nothing on its face to invali-
date it, the next question is, does the évidence show a fraadulent pur-
pose in the grantor in making it ? The proof abundantly shows that
the grantor was hopelessly insolvent, and that for 12 days, by his own
testimony, he knew it, and ooatemplated making a gênerai assignment
of ail his property and assets, saving his exemptions- Hence, ail he
did subséquent to that time in the disposition of his property, assets,
and money must be oonsidered in determining this question . The proof
ehows that the goods and merchandise were sold mostly for cash, and
at low rates. The proof further shows that subséquent to that time
he paid his wife the sum of $900, whioh he olaims he was advised
by his counsel to do, in payment of a debt which he claims he owed
her for money received from her grandfather's estate in Alabama in
thfi year 1852. There is proof tending to show that his wife repeat-
edly took money from the drawer during this time, and that more
goods than usual were taken to his résidence from the store.
If ail this was fair, it might hâve been explained by the testimony
of Mrs. Grunter. She was présent when her husband's déposition was
taken ; yet she was not examined. The rule is that the transactions
between husband and wife are to be strictly scrutinized, and if there
are even slight circumstances going to impeach the bona fides of the
transaction, the burden of proof is thrown upon those claiming under
it, to establish the fairness and validity of the transaction. Coupled
with this is the rule that when suspicious circumstances are shown
against the fairness of the transaction, and the party required to ex-
plain it, if fair, fails to produee proof to establish its fairness, the
presumption is that the transaction was unfair, or that it is to be
taken against its fairness. This rule applies to the facts of this case
with no little force. Notwithstanding the assignor in his testimony
refers to the records of the courts in Alabama and in this state, it was
the duty of the complainants to produoe the proof, and not that of
the défendants to disprove it. As part of the same scheme to dis-
pose of ail his means, the assignor disposed of part in the payment
of what was due his elerks. This he had a.right to do, as well as to
pay a hona fide debt due his wife. The only question in either case
is, was the debt due and owing, and that received for it reasonable
in value, and the payment made in good faith and free from fraud ?
The proof further shows that upon the Bame night that the assign-
ment was executed, acknowledged, and delivered to the clerk for
record, there was another deed executed by the assignor in the form
of a deed of trust, for the deolared purpose of securing his suretiea
upon a note due to the Bank of Sardis for $ 1,000. This deed being
executed, evidently, as part of the same purpose and scheme of an
entire disposition of his means by the assigner, and as the assign-
ment provided for the payment of the same debt as a preferred ôlaim,
and also embraces the same property conveyed in the trust deed, sub-
jeot to the provisions of the trust deed, the two instruments ;muiït be
oonsidered together, and the trust deed, undex, the icirc»mata,nce$ of
'ris FBtSÊBAL REPÛBTEB.
their exécution, must be considered as a partial- assignmeni; of the
property of said Gunter, and controUed by the same rules of law ap-
plicable to the deed of assignaient to Spain.
The liability of the sureties was on an antécédent debt to the bank.
There was no new considération tosustain it. The grantorwas then
hopelessly insolvent, and at the time of its exécution was then in the
act of transferring ail of his property and assets of every description.
The conveyance provided that the grantor should retain possession of
the property untilthe maturity of the debt, whioh did not take place
until December 1, 1882, and not until the beneâeiaries in the trust
deed should request the trustée to take possession of the property
conveyed, and sell the same. Unlessthe property should become en-
dangered as a security for the indebtedness, when the trustée might
take possession of it and hold it until the debt and costs were paid, or
the property was sôld, but until possession should be demanded by
the trusteee, the grantor should hold the same subjeot to the trust
deed. If tbis had been a geneiîal assignment, this réservation of the
use of the property woulduiiquestionablyrender it fraudulent in law.
The assignment conveys the same property to secure the same debt,
as a preferred debt, but subject to this trust deed. According to the
trust deed a sale could not take place until the first of December,
1882, and not then until the trustée was notified in writing by the
beneûciaries to take possession of and sell the property, unless there
was danger of its being lost ; and, as the property is real estate and
immovable, it is diffioult to see how this contingeney could arise;
and, in the mean time, the grantor was to hold and enjoy the use of
the property. It is diffioult to détermine that this delay would not
hâve the effect of hindering and delaying Gunter's other ereditors ; and
were this ail that is in the case, I am of opinion it would estab-
lish the fraudulent charaoter of the conveyance. It will not do to
say that the property might hâve been sold subject to the trust deed,
for in that event the value of the interest sold would be too uncertain
for the purohaser to pay any but a small sum.
But the complainants allège in their bill that the conveyance was
made in good faith and free from ail fraud, and claim affirmative
relief. This allégation is denied under oath by the answer, and
throws the burden of establishing the averment upon complainants.
To grant to complainants ail that they hère claim, that is, that the
conveyance is prima /acte valid, and free from fraud; yet, when cir-
canistances' are proved casting a doubfc upon the validity of the con-
veyance, the burden is thrown upon the complainants to establish its
fairnees and f reedom from fraud. When ail the circumstances already
stated, and others shown from theproof, are considered, occuring be-
fore and at the time of the exécution of this assignment, I am sat-
isôed that the conveyance must be held as fraudulent and void, and
that complainants are not entitled to any relief under their bill.
The resuit is that the injunction heretofore granted must be dis-
«olved, and the bill dismissed, at complainants' cost.
MULLEB V. NORTON. 719
MuLLEB and anotber v. Nobïon and others.'
(Cirouit Court, S. B. Texa». February, 1884.)
1. AcSiaNMENT TO CreditoIîs.
An assignment for the beneflt of creditors, under the laws of Texas, wLereiii
the assigner bas expressly reserved aa interest to himself, to the exclusion of
bis creditors, is null, void, and of no effect.
Lavtrence v. Norton, 15 Fed. Rep. 863, followed.
3. Bamb.
Such an assignment is a contract between the assigner and assignée, which,
while it may be aided by the Jaw, must be taken and construed by the terms
and provisions expressly stipulated therein ; and any stipulation therein whicli
is intended to binder or delay non-consen ting creditors must flnd warrant there-
for ia the law, or the assignment to such creditor is nuli and void.
Bonoho V. Viih, 58 Tes. 167, and KeevU T. Donaldton, 20 Kan. 168, foUowed.
On Demurrer.
Wright é Wright, for plaintiffs.
Crawford d Grawford, for défendants.
Pabdbb, C. J. It was held by this court, in Lawrence v. Norton,
that an assignment for the benefit of creditors, under the laws of
Texas, wherein the assigner bas expressly reserved an interest to
himself, to the exclusion of his creditors, is on its face null, void, and
of no effect, (see 15 Fed. Ebp. 853;) and in that case we also held,
considering the act of 1879 in relation to assignments, that, under the
third section of that act, assignments for the benefit of preferred cred-
itors, who are preferred on their own élection, under stress of a pen-
alty forfeiting their whole claim, are not in terms aided by the law,
ând are not favored by the courts. We stîll adhère to the correett
ness of our conclusions in that case; and now, as then, we see no an-
tagonism between them and the décisions of the suprême court of the
state of Texas in relation to the same law.
In the case now under considération, it seems to us, the fojlowing
propositions are equally well taken, and can be equally supported on
principle and authority. The assignment in favor of creditors, un-
der the act of 1879, is a contract between the assignor and assignée,
which, while it may be aided by the law, must be taken and construed
by the terms and provisions expressly stipulated therein. Poncho v.
Fish, 58 Tex. 167; Keevil v. Donaldson, 20 Kan. 168. That when
an assignment is made, under the third section of the act of 1879,
any stipulation therein which is intended to hinder and delay non-
consenting creditors must find warrant therefor in the law, or the as-
signment as to sUch creditors is àuli and void. Keevil v. Donaldson,
supra; Lawrence y. Norton, supra; Bryan v. Sundberg, 51ex. 4^,3.
See, a,Uo,Jaffray y. McGehee, 107 U. S. 361; S. C. 2 Sup. Ct. Bep.
367.
iReported by Joseph P. Hornor, Esq., of the New Orléans bar.
720 FBDEBÀli SEFOBTKB.
The assîgnment in thîs case, which is under the third section, pro-
yides: "And for said purpôse the said Pred. Muller and A. Jacobs
are hereby authorized and direeted to take possession at once of the
property above conveyed and convert the same into cash as soon and
upon the beat terms possible for the best interest of our creditors."
This provision authorizes the assignées, in their discrétion, to dispose
of the assigned property on crédit. See Moir v. Brown, 14 Barb. 39 ;
Schufelt V. Aherneihy, 2 Duer, 533 ; Rapalee v. Stewart, 27 N. Y. 311 ;
Hutchinson v. Lord, 1 Wis. 286; Keep v. Sanderson, 2 Wis. 31. For
other authorities see Burrill, Assign. § 222. It is a badge of fraud.
Carlton v, Baldwin, 22 Tex. 731; and see Burrill, Assign. § 221.
Such provision is not authorized by law, the said act of 1879 being
silent as to tbe methodof disposingof assigned property. The non-con-
senting creditors being compelled, under the law, to submit to a forced
Btay of exécution until the consenting creditors are paid in f iill, itf ollows
that a sale on crédit, the same not being authorized by law, hinders and
delays such noa-consenting creditors beyondthe sanction of the law, and
consec[uently def rauds them. It is urged that the assignée need not sell
on crédit, and, unless he does, the creditors are not hurt. This inay be
true, but the creditors are not obliged to await the event. The assign-
ment placed it in the power and discrétion of the assignée to prolong the
exécution and closing of the trust for an indefinite period. This was
not only unauthorized by law, but was against the policy of the law,
for it cannot be denied that the policy of the law is to secure a
speedy settlement of the trust and distribution of the assigned prop-
erty. An asaignment in favor of creditors which in eflfect authorizes
the assignée to sell the property conveyed in a method not permitted
by the statute,must be void; for contraots and conveyances in contra-
vention of the terms or policy pi statute will not be sanctioned. See
Jaffray v. McGehee, supra.
It is further claimed in argument that to give effect to the objec-
tions urged against the assignment, and to hold the same invalid for
fraud apparent on its face, is to sanction and permit the very evil
which is the subject of complaint — that is, to give the attaching cred-
itors a préférence, and a préférence, too, over creditors who hâve been
snared and entrapped by the law. To this it is sufficient to answer
that the court is compelled to décide between two sets of preferred
creditors — ^the consenting creditors and the attaching creditors. The
one may be as meritorious as the other; but while the former may be
open to the charge of collusion, and the latter to the charge of rapacity,
the law favors the diligent and vigilant. The trouble arises with the
debtor who wants to go further than the law of 1879 warrants, in
driving creditors to abandon their just claims and demanda.
The demurrer should be sustained ; and it is so ordered.
McCoEMioK, J., concurs.
HAL.TIH V. WSBT. 721
StadijEB and othçrs v. CABROLii, Garuîshee.*
(Circuit Court, S. D. Texa». Febmary, 1884.)
ASSIGNMENl-.
An assigament which authorizes the assigaee to sell the assignée! gonds on
crédit, which undertakes to distribute the remnant after paying conaenting
creditors, in opposition to the terms and provisions of the law, and by which
the assignées, by such distribution, exclude from the beneflts of the assignaient
their individual creditors, and reserve an interest for themselvés, is unauthor-
ized by law. Laterence v. JHorton, 15 Fbd. Rbp. 853^ and MuUer v. Morton, ante,
719, foUowed.
On Demurrer to Answer of Garnishee.
Crawford é Grawford, tôt plaintiffs.
Wright & Wright and J. A. CarroU, îor garnishee.
Paedbb, J. The assignaient in this case, which is under section
3 of the act of 1879, ig attaoked for fraud apparent on its face, to-
wit : (1) It prefers creditors for rent, taxes, and assessments. (2) It
authorizes the assignée to sell the assigned goods on crédit. (3) It
undertakes to distribute the remuant after paying consenting creditors,
in opposition to the terms and provisions of the law. (4) The as-
signors, by such distribution, exclude from. the beneflts of theassign-
ment their individual creditors, and réserve an interest for them-
selvés.
The case of Lawrence v. Norton, 15 Fbd. Ekp. 853, and Muller v.
Norton, ante, 719, gives sufficient reasons for sustaining the second,
tbird, and fourth grounds. Ou the ârst ground it is not neoessary
to pass.
The demurrer is sustained.
MoCoBMiOK, J., concurs.
Malvin and others ». Wert, Assignée.*
{Oireuit Court, If. D. Texas. February, 1884.
AsSIGNMBlfT TO OrEDITOBS.
An assignaient for the beneflt of ail the creditors, without proof or suggo.q
tion of insolvency, where there is no attempt to prefer any créditer, but a de-
cided attempt to hinder and delay them ail, is unauthorized by law.
On Demurrer to Answer.
Ray & Stanley and L. T. Smith, for plaintiffs.
Wright d Wright, for défendant.
•Keported by Joseph P. Hornor, Esq., of the New Orléans bar.
V.19,no.l0— 46
722 FBBBBAIi BBPOBTBB.
Pabdeb, J. In this case, whîch is one of asaîgnment for the benefit
of ail the creditors, there is no attempt to prêter any créditer, but a
very decided attempt to hinder and delay them ail. Without any sug-
gestion of insolvency, or contemplation of insolvency, the assigner
provides that his assignée shall dispose of the assigned goods, consiat-
ing of wares, liquors, and marchandise, in the customary course of
trade, for 60 days, and then, if therè is anything left undisposed of,
the remaining gooda shall be sold at publie auction for cash, af ter
advertising during the time provided by law for the sale of property
seized under exécution, and providing that during the delay of adver-
tising the assignée shall continue the disposition of goods at private
sale. The assignée is given no option. The course laid out in the
assignment is the one he is bound to foUow. The time required by
law for advertising goods to be sold under exécution is not less than
10 days. The assignment, then, without any suggestion of insolvency,
compels the creditors to a forced stay of 70 days. If the assigner
can compel a stay of 70 days, why not for 7 times 70 days ? We
find no authority in the law of 1879 for sucK provision. We are
aware that assignments that make no préférences, but provide for
an equal distribution aiûong ail the creditors, should be favored;
"Equality is justice." It is with this view that we lay no stress on
the objections urgëd against this assignment, that the deed does not
show the maker's insolvëïitey, nor assign in terme ail the property
that the debtor may hâve subject to the demands of his creditors. If
the debtor bas property concealed within the state, the law aids the
assignment, and if the property can be found it passes to the assignée.
See Blum v. Welhome, 58 Tex. 157. If the debtor bas property be-
yond the state it can be reached by creditors wbo may so choose,
just as well as if the assignment had not been made, for the assign-
ment compels the discharge of no debt, nor the release of the debtor.
But with this disposition to favorand sustain this assignment, we are
unable to see our way clear to sanction the enforced stay of exécution
wbich hinders and délaya ail creditors, and, being unauthorized by
law, consequentiy defrauds them ail.
The demurrer is sustained.
MoCoRMicK, J., concurs.
UKITED STATES D. WHITE. 723
United States tJ. White, Eeceiver, etc.
•Uireuit Court, N. D. New York. March 13, 1884.)
Taxation— NoTEB Used fob Circulation — Notes Rbdebmablb m Qoods.
■ Tlie tax imposed by the act of congressof February 8, 1876, 4 19, upon " notes
nsed for circulation," ia a ciiarge upon such notes only as are intended to cir-
culate as money. The act bearB no référence lo the so-called notes isaued by
mercantile ûrms to be redeemed in goods.
At Law.
Martin I. Townsend,'U. S. Atty., for the United States.
John L. White, for défendant.
Wallace, J. This is a writ of error to the district court for the
Northern district of New York, brought to review a judgment of that
court in favor of the défendant. The first question presented by the
bill of exceptions is whether certain obligations issued by the firm of
Aldrich, Sweetland & Co. ftre liable to taxation under section 19 of
the ttct of congress of Eebruary 8, 1875, entitled "An act to amend
existing customs and internai revenue iaws, and for other purposes."
Section 19 reads as follows :
"Every person, firm, or association other than national bank associations,
and every corporation, state bank, or state banking association, shall pay a
tax of ten per centpm on the amountof theirown notes used for circulation»
and paid eut by them."
The firm of Aldrich, Sweetland & Co., merchants, had issued,
paid out, and put into circulation, in the neighborhood of their place
of business, their obligations or promises to pay in goods at their
8tore> varying in amount from 5 cents to $5 each, and amounting in
the aggregate to nearly $5,000, in form as follows : "Due the bearer
one dollar in goods at our store. Kennedy, N. Y., Oct. 14, 1878.
AiiDBicH, Sweetland & Co."
If the meaning of the term, "note? tised for circulation," could not
be satisfactorily ascertained by a. référence to other acts of congress
in pari materia, the question presented would be a more doubtf ul one,
beoause, although such promises to pay are not negotiable notes, in-
asmuch as they are not payable iainoney, they are notes within the
generally-accepted meaning of the word. A literal reading of the
section would subject to taxation every note an individual might exé-
cute and deliver.unless there is some spécial meaning to the term, "used
for circulation;" yet no one would contend that the section was de-
signed to hâve this extended application;. More especially would
such a construction be a 8tartling,>one, in yiew of the provisions of
section 20 of the same act, which inaposes a tax of, 10 per centum on
the notes of any person, firm, oï corporation used for circulation by
fil other persons, firms, and corporations. It is not to be supposed
that congress intended by theaot-in questiog. to snbjeot ail promis-
soi:y notes circulating in the biisiuess of the country to a tax of 10
724 FUDBBAL BEPOBTEB.
per centum — a tax double that imposed in 1862 to meet the ex-
igencies of the war to préserve the Union. It is tberefore necessary
to look for some more restricted meaning of the term, "notes used for
circulation." Thaf meaning may be found by a référence to other
provisions in the laws of congress in pari materia, which, upon fa-
miliar rules of construction, should always be considered in solving
questions of interprétation of statutes. By such référence it will ap-
pear that "notes used in oirenlation," "circulating notes," and "circu-
lation," as that Word is used in relation to the instrumentalities of
banking opérations, are équivalent and synonymous terms.
Section 21 of the act in question provides how the tax imposed by
section 19 shall be returned and collected, and, instead of the words
"notes used in circulation," uses the words, "circulating notes." The
context of the three sections, 19, 20, and 21, shows plainly that the
taxes, within the contemplation of congress and the subject-matter of
the législation, are those relating to banking capital in the hands of
corporations and individuals. According to the scheme of. the exist-
ing internai revenue laws, those taxes are imposed not only on the
capital directly employed, but also upon the deposits and circulation
incident to banking opérations. The word "circulation," in this con-
nection, is defined by the lexicographers as "curreney ; or circulating
notes or bills ourrent for coin." Webster. That this is the subject
of taxation in the sections in question is obvions, beeause thèse sec-
tions in the act of 1875 are a substitute for the pre-existing provisions
of law, respecting the taxation of banks and bankers, as found in the
third clause of section 3408, Eev. St. That clause imposed a tax of
"one twenty-fourth of one per centum each month upon the average
amount of circulation issued by any bank, association, corporation,
Company, or person, including as circulation ail certified checks and
ail notes or other obligations calculated or intended to circulate or to be
used as money." In lieu of the tax of one twenty-fourth of one per
centum a month, upon notes "calculated or intended to circulate for
money," thus imposed, the act of 1875 imposes a tax of ten per cent,
per annum on "notes used for circulation." Both the earlier and
the later law deal with the same persons, and the same subject of
taxation; but the later act, in haïmony with the gênerai législation
of congress since, lightens the burden imposed. It thus seems clear
that the "notes used for circulation," taxed by the act of 1876, are
notes calculated or intended to ciroùlate for money. That obligations
or notes of the character put forth by the makers hère are not obli-
gations intended to circulate a& money was distinctly héld by the
suprême court in U. S. v. VanAuken,^^ U. S. 366. In that case the
défendant was indicted for paying out and circulating similar obliga-
tions, under an act of congress declaring that no private corporation,
firm, or individual, should make, issue, circulate or pay out any note
or other obligation for a lèss sum than one ioMsn, intended to circulate
as money, and the court deoided that, as such obligations were not
BIOH V. TOWN OP MENTZ. 723
solvable in money, but only in gobds, there was no, offense within the
meaning of the statute.
As the obligations in question were not ciroulating notes, or notes
used for circulation, as that term is used in the act imposing the tax,
it is unnecessary to consider the other questions which are presented
by the bill of exceptions, and the judgment of the court below is
affirmed.
Only negotiable promissory notes payable în money are subject to taxation
as "notes used for circulation." Hollister y. Zion's Co-operative Mercantile
Inst. 4 Sup. et. Bep. 263.— [Ed.
EicH ». TowN OP Mentz.
(Cireuit Courf, JfT. D. Nm York. March 17, 1884.)
1. MuNicEPAi, Bonds— Statutory Rbquikbmbnts— Cbrtipioatk of Judgk.
The act of 1871, of tlie New York législature, authorizing municipal corpora-
tions to aid in the construction of railroads, requires the pétition to show to
the satisfaction of the county judge that the petitioners are a majority of the
tax-payers, " not including thoae taxed for dogs or highwav tax only." Edd,
following the case of Oowdrey v. Toion of Ganeadea, 16 Fbd. Kep. 532, that
municipal bonds issued under the act are void unless the record shows that the
county judge was satisfled of the suffloiency of the pétition.
2. 8aMB—TAX-PaYBRS— DEFINITION BT STATUTS.
The act of 1871 deflnes the term " tax-payer," " when used In thia act," to
mean such tax-payers as are not assessed for dogs or highway tax only. But,
Tiéld, that this définition did not cure a pétition which merely showed the con-
sent of "a majority of tax-payers," where the act explicitly required the ap-
proval to appear of " a majority of tax-payers, not including those taxed for
dogs or highway tax only."
At Law.
Jas. R. Cox, for plaîntifiF.
F. D. Wright, for défendent.
Before Wallace and CoxE, JJ.
Wallace, J. The same questions arise în this case as were pre-
sented in Cuwdrey v. Town of Ganeadea, 16 Fbd. Eep; 532, where it
was ruled that the bonds of the town were void because the county
judge did not adjudicate that therequisite majority of tàx-payei's had
consented to the création of the bonds. No reasons bave been ad-
vanced in the arguments of counsel that are deemed sufficient to
change the conclusions reached in the Ganeadea Gaseï, It is proper,
Lowewer, to adrert to an argument that was urged in that case, and
considered, but not discussed in the opinion, and which bas been
urged again bere. It is insistéd that because the amended act of 1871
defines the term "tax-payer" "when used in this act/' to meàn sùch
tax-payers as are not assessed for dogs or highway tax oûly, it is not
y 26 FBPEBAL.BEPOETEB.
necessary to comply with the explioit language oî the act as to the
form and substance of the pétition. The pétition is the basis and
groundwork of the whole bonding proceeding. When the amended
act was passed many of thèse proceedings had been set aside by the
courts of tfais state beoause of defects of form in the pétition; and
it was the wellrsettled law of the state courts that any such defect
was jurisdictional, and rendered the whole proceeding futile. Speak-
ing of the act of 1869, the court of appeals said in People v. Smith,
45 N. Y. 772: "The authority conferred by the act must be exer-
cised in strict conformity to, and by a rigid compliance with, the let-
ter and spirit of the statute." The first section of the amended act
prDvides, in language as explicit as could be employed, that the
pétition, verified by one of the petitioners, shall set forth that the
petitioners are a majority of tax-payers of the town who are taxed or
assessed for property "not including those taxed for dogs or highway
tax only." It subsequently provides that the word "tax-payer,"
"when used in this act," shall raean "any corporation or person as-
sessed or taxed for property, * * * not including those taxed for dogs
or highway tax only." Section 2 makes it the duty of the county ]udge
"to proceed and take proof as to the said allégations in the pétition;"
and if he finds that the requisite majority of tax-payers hâve conaented,
he shall so adjudge. If there were no express provision requiring it
to appear in the pétition that the tax-payers who apply are a ma-
jority of the designated class, the pétition would doubtless be suf&cient
if it alleged that they were a majority of the tax-payers of thè town;
and, in this view, there was no need of amending the act of 1869 in
this behalf. If the argument for the plaintiff is sound, this explicit
provision is meaningless. It is not to be assumed that the législa-
ture did Biot mean anything by the language which they so carefuUy
employed. It is not dif&cult to apprehend what the législature meant
by defining the word "tax-payer." It occurs several times in the act.
It was defined for convenience, in order to avoid répétition of descrip-
tion whenever the word was used in the act, and in order that there
should be no room for doubt what kind of a tax-payer was meant
whenever the word was used.
Asit.Beems to me the real question in this case is not whether the
county judge made an adjudication which is binding upon the défend-
ant, under the rules of law which control a court or officer exercising
a spécial statutory power, and which require every step to be in strict
conformity with the statute which confers the power, but whether
the acts of the législature are not to be treated as oreating a ju-
risdiction of a spécial character which canuot be assailed collater-
ally, in whiob ail errors of fact and of law, even those respecting
the existence of jurisdictional conditions, are to be corrected in the
proceeding itself upon a review by the kppellate tribunals. There is
much to be said in support of the latter suggestion. Munaon v. Town
of Lyons, 12 Blatchf. 539.
OOGBfliiN », STBTSON; 727
As one of the cases now pdnding in this court, and presenWng the
-same questions as this, involves a sufficient sum to be reviewed by
the suprême court, and is, to be presented to that court, ail proceed-
ings in this case will be stayed, andno judgment be entered, until the
décision of that case on writ of error, or until the further order of this
court.
CoxE, J. I concur in the disposition made of this case; but, for
the reasons heretofore stated by me, {Rich v. Town of Mente, 18 Fed.
Ebp. 52, and Chandler v. Town of Attica, là. 299,) I cannot agrée
with the circuit judge in the construction placed by him upon the act
ofl87l.
COGHLAN V. StETSON.
lOireuit Court, 8. D, New York. March 17, 1884.)
1. OONTKACT— RtJLBS OF IntBRPKETATION.
Where a contract is ambiguous, contradlctory, or obscure in Its language, and
18 capable of twp interprétations, it must be given tliat construction which in-
clines most nearly to justice and common sensé.
2. BAMB— ESTOPPEL.
Where an actoris employed bya manager who agrées that the actorshall
appearat least-seven times a week and bepaid $100 for each appearàace, which
stipulation the manager violâtes by failing to provide employaient for theactor
for a period of tliree weeks, the actor waives none of his rights by subsequently
appearing under the contract atid r^ceiying pay pursuant to its. provisions.
3. Same— Implied Agkekment.
Where an employé agrées to work during a deflnite pertod for a stipulated
sum, and enters upon the discharge of his duties under the contract, and ren-
ders services which are accepted bythe employer, the law implies an agréer
ment upon the part of thé latterto fumish employment to the servant and pây
for it as stipulated in tue agreement. ■
4. Pleading — AmënoMent.
Amendments will be allowed to correct errors in pleading when fhe oppo-
site party is not raisJed and Substantial justice so requires. It is not the policy
of modem procédure to defeat a party who has a merîtorioiis cause of actldn
because he has not deciared in the right form^:
Trial by the Court.
Olin, Rives é-Montgomery, for plaintiff.
A. J. Dittenhoefer, for défendant.
CoxE, J. On the thirty-first day of August, 1883, the parties to
this action executed the following contract :
"This agreemént, made and entered into this thiïty-Ôrat day of August, in
the year of our Lord one thousand eight hundred and eSghty-thr^, by and
between John Stetson of Boston, in the county of SufEolk and. comme» vealth
of Massachusetts, manager of Fifth.Avenue Theate;r of.îTew York, of J;he
firstpart, and Charles P. Cpghlftn, of London,En^ and, ofsecpnd part; wit-
nessefch, that the said party of the second part contracts that he shall give
his professional services as leading man of the Fîftll Avenue Thèatér, New
728 FBOEBAL BEPOBTËS.
York, in such dramatic performances as shall be given in sald tlieater, also
in sucli theater in cities in the United States and Canada as said party of tlrst
part may direct for a season begianing October 8. 1883, and ending Saturday
evening, May 3, 1884. It is underatood and agreed tliat when said party of
second part shall play in any theater outside of New York, he shall hâve his
name featured on ail printing and advertisements, and be recognized as the
stock star of said Fifth Avenue Theater Company. Said party of second part
agrées to f urnish ail his costumes and to pay his own fare and expenses to
New York. Said party of flrst part agrées to pay railroad fares for party of
second part, including sleeping cars and transportation of luggage, should
party of second part be required to play in any other theater outside of New
York during this engagement. Said party of the second part agrées to re-
port for rehearsal in New York, on or before Monday, September 24, 1883,
and be in readiness to perform Monday, October 8, 1883. It is understood
and agreed that seven performances each week shall constitute a week's busi-
ness, but wherever it is customary in theaters to give more than that num-
ber, said party of second part shall give that number of représentations.
Said party of the first part shall hâve the sélections of the plays to be pre-
sented at each entertainment, in which party of second part shall appear.
Said party of flrst part agrées to pay party of second part the sum of one
hundred dollars ($100) for each performance in which he shall appear, settle-
ment to be madô on the regular salary day of the theater. Said party of sec-
ond part agrées that he will not perform in any theater in the United States
or Canada till this eontract shall. hâve been faithfully f ulfllled.
"In witness whereof, we bave hereunto set our hands and seal.
"John Stetson. [^- ^-l
"CHABLES F. COGHLAN. [L. S.J
"It is further xinderstood that said Stetson can continue this eontract for
six weeks by giving said Coghlan notice to that efCect on or before March 1,
1884."
The plaintiff came to this country in September, 1883, commenced
acting at the Fifth Avenue Theater, New York, on the eighth of Oc-
tober, and continued until the tenth of November, a period of five
weeks. On the evening of the latter day, having disoovered that
his name was omitted from the play advertised for the eixsuing week,
he called upon the défendant, and was informed that his services
would not be required for an indefinite period. The plaintiff pro-
tested, and notified the défendant of his entire willingness to play,
and that if he was compeUed to remain idle through the defendant's
neglect, he should insist upon being paid at the rate of $700 per
week. The plaintiËf was not permitted to play for three weeks. He
demanded his salary for this period and was refused. Subsequently
he appeared at Boston under the defendant's auspices. This action
is to recover $2,100, alleged to be due under the eontract for the
three weeks aforesaid, commencing Monday, November 12, 1883.
It is argued that the plaintiff cannot recover for the reasons :
First. He did not "appear" during the period aforesaid, and the de-
fendant was not required by the eontract to permit him to appear.
Second. Having subsequently accepted payment at the rate of $100
for each performance in which he appeared the plaintiff is estopped
from claiming payment when he did not appear. Third. The de-
OOGHLAN ». STBTSON. 729
fendant does not agrée to employ the plaintifif, the agreement is by
the plaintiff alone to render services for the défendant. Fourth. In
any event, the complaint is defective, the action should bave been for
damages.
The principal controversy arisea upon the construction of the writ-
ten contract and must be determined by that instrument alone. The
interprétation contended for by the défendant is so harsh, so unfair,
BO wanting in reciprocity that the court ehould not hesitate to reject
it provided the instrument is susceptible of any reasonable construc-
tion. According to the défendant no obligation resta upon him to do
anytbing. The plaintiff, on the contrary, who, to use the language
of the defendant's brief, is "an actor of famé and success in Eng-
land," is required to leave his home and his profession there, cross
the Atlantic at his own expense, pay his board in this country from
September 2éth till May 3d, and possibly for six weeks thereafter,
fumish his own costumes, remain at the beck and call of the défend-
ant for seven months, and refuse ail other employment. To ail this
the plaintiff is bound, and the défendant is not bound at ail. In
other words the plaintiff must cross 3,000 miles of océan, loge time,
money and réputation, and if it suits the fancy or whim of the défend-
ant to put some other actor in his place, he is whoUy rômediless, he
cannot compel the payment of a single dollar. The charge that this
interprétation is severe is not strenuouely denied by the défendant,
but he insista that the contract is one which the plaintiff was at lib-
erty to make and having made it, he must abide the conséquences.
Undoubtedly, this is so. If the plaintiff made such a contract he
cannot recover. But whether he made it or not is the précise ques-
tion involved. If the language used clearly establishes the defend-
ant's version it would unqueationably be the duty of the court to en-
force it. But where the exact meaning is in doubt, where the lan-
guage used is contradictory and obscure, if there are two interpréta-
tions, one of which establishes a comparatively équitable contract
and the other an unconscionable one, the former construction should
prevail. In such cases the court may well assume that the parties
do not intend that which is opposed alike to justice and to common
sensé. Uniess the language is so definite and certain that no other
interprétation can be upheld a construction should not be adopted
which must inevitably cast a reflection upon the sanity of one of the
contracting parties.
The contract eontains several clauses which read separate and
apart from the context sustain the defendant's version, and they hâve
been pressed upon the attention of the court with much learning
and ingenuity. But taken as an entirety, read as one instrument,
read in the light of surrounding circumstances it must be said that
the plaintiff's construction is the true one. The contract provides,
among other things, that the plaintiff is to be leading man in such
dramatic performances as shall be given in the Fifth Avenue Theater
730 FBDBBAL BSPOQTEB.
during the season of 1883-84. . It, is then mutually agreed that
seven performances each week shalï constitute a week's business.
The plaintiff agrées to appear sevep times a week and the défendant
agrées that he -will employ the plaintiff at least seven times a week.
This provision is as binding on one of the parties as on the other,
neither oaû avoid it. The défendant agrées to pay the plaintiff $10d
for èach performance in whiçh he shall appear. The clause italicised
is the one upon which the défendant bases hia principal argument.
It is possible that thèse words are unuecessary, that the contract
would be perfect without them, and yet, taken in conjunction with the
stipulation as tQ the number of performances each week, there is
little difficulty in reconciling them with the other clauses. The con-
tract would then read in substance: "The party of the first part agrées
to pay the party of the second part the sum of one hundred dollars
for each performance in wbich he shall appear, and it is understood
and agreed that seven performances each week shall constitute a
week'B business." The plaintiS shall be paid for the seven perform-
ances but for no more, unless he aotually appears in more. The
clause referred to was also a wise provision in case the plaintiff
through sickness, or otherwise, neglected to appear.
I am unable to see how the plaintiff waived any of his rights by
his subséquent appearance at Boston. His action in that regard was
entirely consistent with his theory of the contract. By accepting pay
under the contraoihe did not accède to the defendant's interprétation
to any greater extent thau the défendant acceded to his by paying
the amount due.
The objection that the défendant does not agrée to employ the plain-
tiff bas already been disposed of . If it were neceasary, the law would
imply an agreement to employ him during the stipulated period, the
plaintiff having entered upon the discharge, of his duties under the
contract and rendered services for the défendant which were accepted
by him. But there is hère an express agreement. The contract is
not unilatéral. The one party agrées to aet and the other agrées to
pay.
Eegarding the objection disputing the plaintiff's right to maintain
the action in its présent form it is sufficient to say that upon the trial
the plaintiff asked leave to amend the complaint so as to meet the
criticisms of the défendant. This request should be granted. It is
not the policy of modem procédure to defeat a party who has a mer-
itorious cause of action beeause he has not declared in the right form,
espeeially when ail of the facts are disclosed and the opposite party
not misled. The fault hère pointed out is that the plaintiff seeks to
recover a sum of money as wages which he should recover as damages.
The objection, though quite likely it is well founded, is a formai and
tecbnical one. Bvery élément of surprise is wanting, Had the com-
plaint been in the form suggested the resuit would inevitably bave
been the same. It is said that the défendant should be permitted to
FLETCHBE V. NEW OBIiBANS & N. E. B. 00. IZl
offer, in mitigation of damages, prôof tbat the plaintiff couldhave ob-
tained an engagement elsewhere during the time he remained idle.
The short anewer is, that by the terms of the contract the plaintiff
expressly bound himself "not to perform in any other theater." He
could not haveaccepted a position under another management with-
out himself violating the contract. The amendment is within the
discrétion of the court and is one which clearly should be allowed; to
•withhold it would simply protract litigation without change of resuit.
The plaintiff is entitied to the judgment demanded in the complaint.
FiiBTOHEB and others v. New Obleans & N. E. R. Ce*
(Circuit Court, B. B. Louiaiana, February, 1884.)
Akbithation.
Under a contract bj which the défendant was to pay plaintiffs forwork donc
upon certlflcates and estimâtes of defendant's chief engineer for the time being,
the obligation of the défendant does not practically arise until the défendant
is satisfied that the plaintifls are eniitled to compensation ; and it was Tield
that the défendant may not avail itself of the labor performed by tlie plaintitïs,
and then " wrongfully, arbitrarily, unreasonably, and in bad faith," stand upon
the literal terms of the contract and refuse to pay.
On Démarrer.
Thomas J. Semmes, J. Carroll Payne, Henry J. Leovy, and Ernest
B. Kruttschmidt, for plaintiffs.
Robert Mott and Walter D. Denegre, for défendant.
PabBëb, j. Under the terms of the contract sued on in this case,
the défendant is to pay the plaintiffs for work done, upon oertificates
and estimâtes of the defendant's chief engineer for the time being.
"The chief engineer for the time being" is the créature of the Com-
pany, Practically, then, under the terms of the contract, the obliga-
tion of the défendant to pay the plaintiffs for work done does not
arise until the défendant is satisfied that the plaintiffs are entitied to
compensation. The question in this case is whether the défendant,
under its contract, may avail itself of the labor performed by plain-
tiffs, and then may "wrongfully, arbitrarily, unreasonably, and in
bad faith" stand upon the literal terms of the contract and refuse to
pay. The décisions are to the effect that, "in the absence of fraud,
or such gross mistake as would necesaarily imply bad faith, or a f all-
ure to exercise an honest judgment, his (the umpire's) action in the
premises is conclusive." 97 U. S. 402; Sweeney v. V. S. 3 Sup. Ct,
Eep. 344. In this case "fraud" is not specificallyeharged, but "bad
faith" and "a f allure to exercise an honest judgment" are. And it
seems to me, with the relation between the umpire and the defend-
* Reported by Joseph P. Hornor, Esq., of the New Orléans bar.
782 FEDEBAL BEPOBTEB.
ant existing as seen above, that charging the action of tlie umpire
to be arbitrary, unreasonable, wrongful, and in bad faitb would in-
clude ail the charges of fraud, collusion, and gross mistake neces-
sary. In Chapman v. Lowell, 4 Cush. 378, it is held that in cases
Uke this the umpire must net act arbitrarily, capriciouely, and un-
veasonably. In a Wisconsin case similar to this it -was held: "If
'raud in the arbiter can ever be established by proof that he refused
to certify the exécution of the work when the same bas been duly and
properly performed, it can only be in those cases wbere the refusai
is shown to bave been palpably perverse, oppressive, and unjust, so
much so that the inference of bad faith and dishonesty would at once
arise were the facts known. " Hudson v. McCartney, 33 Wis. 331. The
différence in meaning between "perverse, oppressive, and unjust," in
the Wisconsin case, and "arbitrary, unreasonable, and wrongful," in
this case, is so little that the two cases may be considered as identical.
Without undertaking to détermine now how much the plaintiff may be
required to prove on the trial of the case of arbitrary, unreasonable,
and wrongful action in order to avoid the action, or failure of action,
on the part of the defendant's "chief engineer for the time being,"
I am satisfied enough is alleged in the pétition to put the company
on its défense.
The exception that plaintiffs cannot demand further payment from
the company without showing that ail laborers, subcontractors, and
material-œen bave been paid, and that no liens are recorded against
the company, does not seem to be well taken. The suit is for dam-
ages in a large sum, as well as for balance due under the contract.
The pétition allèges that what, if anything, is due to such laborers,
etc., is primarily due from the company, and plaintiffs reserve their
rights to sue for it, if they are compelled to pay. Any rights the de-
fendant may hâve in this regard may be brought in défense.
The exception will be overruled; and it is ordered.
In re Schbevee, Bankrupt.
(Diiiriet Court, S. D. New York. Pebruary 20, 1884.)
QuAEANTSr— CoNSrDBRATION— ASBIGNMBNT OF MORTOASH— IntENT OF PARTIES—
Bankeitptct— Proof of Dbbt.
Where V., a builder, agreed with G., owner, by contract in writing, to build
the latter a house for $8,175, and G. agreed to pay B. therefor $8,175, lawful
money, as foUows : when topped eut, $5,000, by the assignment of a bond and
mortgage held by one 8. on certain premises nàmed, and $3,175 when the build-
ings were completed; and when the buildings were topped out, V. refused to
proceed unless the bond and mortgage were guarantied byS.,rea3onabledoubt
having arisen as to the value of the mortgage, and S. having thereupon as-
signée the mortgage with his guaranly for the considération of $5,000, ex-
pressed in the assignment, and the mortgage security having turned out worth-
IN BE SOHBKYEB. 733
less, and S. becomîng bankrupt, a claim upon hîs guaranty beîng presented to
the register by the représentatives of V. after his death, and disputed on the
ground that it was given without any actual considération ; and the attorney
who drew the asaignment having testifled that 8. stated at the lime that he in-
tended to make the mortgage as good as cash, and that V. ought to bave his
money : held, that the guaranty should be sustained, as given la accordance
with the actual intention of the parties, as upon a modification of the original
agreement to that eflect, and as supported, therefore, by the considération
named in the assignment ; and that the claim upon the guaranty should be al-
lowed to be proved in bankruptcy against the estate of S.
In Bankruptcy.
T. M. Tyng, for Vanderbilt.
A. 0. Salter and John L. Lindsay, for bankrupt.
Bbown, J. In the case of Vanderbilt v. Schreyer, 91 N. Y. 392, it
was held to be compétent for the défendant to show by paroi évidence
that^the guaranty of the mortgage assigned by him to Vanderbilt was
without considération, although the guaranty was expressed in the
instrument of assignment, stating a considération of $5,000 for the
whole transaction. Without in the least questioning the correctness
of this décision, the counter proposition is also obvious: that it is
compétent for Vanderbilt also, or his représentatives, to show by
paroi évidence that there was a considération for the guaranty. Had
the original agreement between Gebhardt and Vanderbilt, whereby
the latter was to take an assignment of the mortgage in part pay-
ment for erecting the building contraeted for, provided that the mort-
gage should be guarantied by the assignor, no question could exist
that the considération of $6,000, mentioned in the assignaient of the
mortgrge, would be deemed a considération for the guaranty as well
as for the assignment. 8o, also, if such had been the actual inten-
tion of the parties to the original agreement, although the agreement,
as'reduced to writing, omitted the stipulation for the guaranty, there
could be no question that the guaranty, when given in exécution of
the actual agreement and understanding of the parties, would be
deemed a part of the original agreement, and would be sustained by
the same considération named in the written assignment of the mort-
gage, of which the guaranty forma a part. That, in substance and
efifect, is what the évidence of McAdam, though brief, sufficiently
shows to hâve been the fact. He testifles that Schreyer, when direet-
ing him to draw the assignment, told him that there was a difficulty
with Vanderbilt about the value of the mortgaged property; that he,
Schreyer, intended to make it as good as money, and therefore or-
dered his guaranty to be inserted on the agreement; that on the next
day, when Schreyer called to exécute the assignment, it was ail read
over to him, and that he then said the guaranty was right, and that
he intended to make the mortgage as good as money; that Vander-
bilt's work was well done, and that he ought to hâve his money.
That it was the intention of Vanderbilt to hâve the équivalent of
money there can be no doubt, so far as Schreyer's guaranty could
make it so. The case is one, therefore, in which both the parties
784 FBDEBAIi BKPOBTSiÇ.
represented hère agrée as to what the intention was. Schreyer had
received from Gebhardt the f uU amount of the mortgage in money, or
its équivalent. The written agreement between Gebhardt and Van-
derbilt was therefore détective in not fuUy expressing the actual in-
tention of thèse parties as to the transfer of the mortgage. In a
court of equity, if such a mutual intention was admitted, the agree-
ment would be reformed by inserting the proper provision requiring
Schreyer's guaranty. The case is one in which the maxim of equity
is applicable, that that will be deemed done which ought to bave beeu
done; namely, the constructive insertion in the original agreement
of a provision for the guaranty of the mortgage by Schreyer, accord-
ing to the actual intention.
The agreement itself contains strong évidence that Yanderbilt was
to hâve the équivalent of money. He first contracts to build a house,
not for a bond and mortgage, whatever they may be worth, but for
80 much money, viz., $8,175; next, Gebhart agrées to pay him therefor
that same amount of money; and he finally agrées to pay Vanderbilt
$5,000, by Schreyer's assignment to him of the bond and mortgage
in question. Had the agreement been to pay $5,000 by the deliv-
ery of a certain horse, instead of assigning a bond and mortgage, and
the horse had died before the time of delivery, it is well settled that
Gebhardt could not hâve tendered the dead animai in payment. In
such a case the law présumes conclusively that the intention of the
parties was the delivery of a living horse, and not of a dead carcass.
So, if at the time when this bond and mortgage were to be assigned
they had become utterly worthless, through the bankruptcy of the
bondsman, and the cutting off of the lien of the mortgage by the
f oreclosure of prior mortgages, the presumption of law would, I think,
hâve been equally conclusive that Vanderbilt was entitled to an es-
isting bond and mortgage, having value, and not to two worthless
pièces of paper. The law looks at the intention of the parties, to be
gathered from the agreement itself, or from the surrounding circum-
stances.
In the présent case, Vanderbilt might also bave shown that he was
deceived in the agreement to take the mortgage ; or that it was agreed
to be guarantied ; or that he was to take no risk of dépréciation be-
tween the time of the contract and the time of the assignment. The
written agreement is silent as to who should bear the risk of such
dépréciation meantime. But the agreement shows so clearly a gênerai
intention to give the équivalent of money in the assignment of the
bond and mortgage, that an ambiguity arises conoerning the risk of
dépréciation, such, as it seems to me, would admit paroi evidenee
even to supply the defect in the written agreement. The évidence
shows that Vanderbilt refused to take the assignment of the mort-
gage without additional security, and stopped work on the buildings.
Hé is dead, and his side of the controversy cannot now be fuUy
known. But as the mortgage was fouud, not long after, to be worth-
LÏMA« V. MATPOLE. ' 785
less, there was evidently jtist grouud for Vanderbilt'e hésitation. I
Bee uo reasou to question the faot that whatever dispute or contro-
versy there was at the time was a hona fide oontroyersy, based upon
probable grounds, on Yanderbilt's part. An adjustment of suoh a
controversy, made by the parties themselves, muet be presumed prima
facie to hâve been made in accordance with their actual, original in-
tention ; and this intention is moreover shown, by the testimony 6f
MeAdam, to hâve been in accordance with the setttlement made.
It was at ail times compétent for the parties to modify their original
agreement by addiug a new clause providing for the guaranty. Such
a modification would hâve been sustained as part of the original in-
tention. No other considération than that intention would hâve been
necessary to sustain it. When an adjustment ,of ahonafide contro-
versy on such a point has been fnlly executed, it should be sustained
as beingj prima fade, done upon a modification of the original writ-
ten contract to accord with such intention ; preoisely as if the ori-
ginal agreement had at the saûie time been modified accordingly.
Schreyer, it is true, dénies th» statements of MoAdam ; but the latter
is sustained by the évidence of the acts and conduct of Vanderbilt,
and his testimony should, I think, be foUow.ed.
For thèse reasons the proof of debt on the guaranty is directed to
be aliowed.
Lyman ». Matpolb and othera.
{Circuit CouH, N. D. Illinois. Februàry 11, 1884.)
L Patents for Invention— Ebefbctino Dbvicb— Pdblio Use.
The )aw permits an inventor to eonatruct a machine which he is engagea In
studying upon and developing, and place it in friendJy handg for the piirpose
of testing it and ascertaining whether it will perform the functionsclaimed for
it, and if thèse machines are strictly experiments, made solely with a view to
perfect the device, the rîght of the inventer remains uriimpaired : but wlien an
mventor puts his incomplète or expérimental device upon the market, and sells
it, as a manufacturer, more than two years before he applies for his patent,
he gives to the public the device in the condition or stage of development in
which he sells it. In such case his patent cannot be aliowed to relate back
and cover forms which he gave to the public more than two years before he
applied for a patent,
3. 8A*œ— Patent No. 179,581 Construbd— Infringbmbnt.
The Wilfred C. Lyman patent of July 4, 1876, No. 179,581, construed, and
Aela not to be infringed by a condenser head having an enlarged drain-pipe
instead of a hand-hole, »nd not having inside cônes wilh turned rims or edges.
InEquity. . ,
George P. Baryton, for complainant.
Banning é Banning and Charles C, Linthîcum, for défendants.
Blodoett, J. This is a bill to enjoin an^ alleged infringement by
the défendants of a patent issued to the complainant for au "improve-
786 fEDEBAIi BBPOBTEB.
ment in traps for exhaust steam pipes. " The object and scope of
the invention is set ont by the patentée as follows :
"The object I hâve in view is to provide the top of the exhaust pipe of a
non-condensing steam-engine with a head which will not only trap oiï the
water of condensation carried up the pipe with the exhaust steam, but also
the grease used for lubricating the cylinder, and carried up by the exhaust
steam. The invention consista in the peculiar construction of the cap and
the combination therewith of the deflectors and conduits, and a hand-hole in
one side of the cap, through which access is had to the interior for removing
grease and solid matter settling therein."
The gênerai soope of this invention is, that the steam, carrying
with it some spray or water, and the melted grease or oil ejected with
the steam, reaches by the exhaust pipe the arrangement shown in the
condensing head; there the steam is deflected, sent around the cold
edges of the large surface, where the water, whieh bas already be-
come eondensed, is caught upon the deflectors and upon the head o(
the cap of the condenser, and is eondensed, se that the water fallt
into some of the réceptacles for it ; it either is eondensed and passes
into the iower skirt, which is inverted, and runs down and passes into
the ebannels and flows through the outlet pipe, or it is held by the
upturned edges, which are shown by the model, so that whatever
steam is discharged is mainly dry steam that will not readily con-
dense, and passes into the air without depositing any water or grease
on the adjacent roofs or buildings.
The défendants deny the infringement of the complainant's patent,
and also insist that the complainant made, and sold, and put in pub-
lic use condensers, in the form now made and used by the défend-
ants, more than two years prior to the complainant's application for
a patent and the issue of bis patent. It is insisted that by such pub-
lic use the complainant bas lest the right to cover a device so given
to the public by his patent. The proof in the case, which I will not
stop to read, is briefly this: Some years ago, in 1870, 1871, and
1872, the complainant commenced the manufacture of thèse con-
densing heads. He began by manufacturing a condenser head some-
thing like that shown in the proof marked, "Lyman's Old Head,"
which is admitted to be a substantially correct illustration of what
the défendant now makes. In 1872 he manufactured several of
thèse, at least four of which he sold and put in public use. They
were not expérimental heads, in the strict sensé of the word, such as
are allowed within certain limits to be made and used by an inventor
as experiments. The law permits an inventor to construct a ma-
chine which be is engaged in studying upon and developing, and
place it in f riendly hands for the purpose of testing it, and ascertain-
ing whether it will perform,the funetions»claimed for it; and if thèse
machines are strictly experiments, made solely with a view to per-
fect the device, the right of the inventor remains unimpaired; but
when an inventor puts his incomplète or expérimental device upon
the market and sells it, as a manufacturer, more than two years bâ'
LYUAN V. MATPOLE. 737
fore he applies for his patent, he gives to the public the device in the
condition or stage of development in which he sells it. The proof in
this case shows that during the year 1872, and forepart of 1873,
coœplainant made and sold at least four of thèse condenser heads,
made in ail respecta like the "Exhibit Lyman's Old Head." They
were not expérimenta, but were made, sold, and put in use by eom-
plainant in his business as a manufacturer. In the mean time the
complainant continued his expérimente, and after a time increased
the size of the npper deflector so that it overhung the lower one, and
turned up the edges of the npper, and turned down the edges of the
lower deflector, so that they hâve the shape shown in his final patent ;
and in April, 1876, he applied for his patent, which was issued a few
months afterwards, in which he specilieally describes his device, in-
cluding the uptnrned edges of the upper deflector, and the down-
turned edges of the lower deflector. His claims specifically call for
the deflectors with the edges turned as described. The claims are as
followB :
"(1) The combination of the cap, B, B', eseape pipe, A', deflectors, C, C,
and conduits, c, D, said deflectors and conduits provided with curved outer
rims or edges, with the exhaust pipe of a non-condensing engine, substan-
tially as and for the purpose set forth.
"(2) The combination of the cap, B, B', eseape pipe. A', deflectors, C, C,
conduits, a, D, and hand-hole, E, with the exhaust pipe, A, of a non-condens-
ing steam-engine, substantially as and for the purpose set forth. "
Both thèse claims, as I oonstrae them, oall for thèse deflecting
plates with turned edges.
The complainant's device also shows a "hand-hole" for the purpose
of removing the grease, soot, or other solid matter which may collect
in the condenser. The défendants, instead of using a "hand-hole " lo-
cated as shown in the patent, insert a large screw plug near the lower
end or apex of the inverted eone, through which plug the drain pipe
passes, and by unscrewing and removing this plug, a hook or wire
can be inserted and used to cleau ont the solid matter. This is not
a "hand-hole," as called for by the spécifications of complainant's pat-
ent, but is a mère enlargement of the drain or discharge pipe. I find,
therefore, that in the gênerai features of the condensers made by de-
fendants, they conform to those which complainant made and gave
to the public at least three years before he applied for his patent ;
and, in construing complainant's patent, I must hold him bonnd by
the state of the art as he developed it up to 1872 and 1873, and that
his patent eannot be allowed to relate back and cover the forms of
condensers which he gave to the publie more than two years before
he applied for his patent. The complainant's bill must be dismissed
for want of equity.
Prier to 1836 our patent laws contained no provision in référence to aban-
donment or dedication of an invention to the public by uses or sales before the
filing of an application for a patent. The suprême court, however, decided
V.19,no.l0— 47
738 FEDBEAIi.BBPOBTBB.
in 1829 that an invehtor might, abandon Ms invention to the public by such
uses or sales, and, speaking through Justice Stoey, said: "Upon most delib-
erate considération we are ail of opinion that the true construction of the a'et
is that the flrst inventer cannot acq[uire a good title to a patent if he suffers
the thing invented to go into public use, or to be publicly sold for use, before
he makes application t'or a patent. His voiuntary aet or acquiescence in the
public sale and use is an abandonraent of his right, or rather créâtes a disa-
bility to comply with the terms and conditions on which alone the secretary
of state is authorized to grant hira a patent."^ This doctrine, which hàd been
previously aanounced by Justice Story * and by Justice Washington, ^ was
reiterated by the suprême court in 1883.* And "at common law the better
opinion, probably, is that the right of property of the inventer to his invea*
tion or discovery passed from him as soon as it went into public use with his
consent; it was then regarded as having been dedicated to the public as com-
mon property, ànd subject to the common use and enjoyment of ail." ^
The act of 1836 provided that a patent should not be issued for an inven-
tion which was, "at the time of his [the inventor's] application for a patent,
in public use or on sale with his consent and allowance." ïhe act of 1839
changea this so as to aUow uses or «aies for not "more thaa two years pripï
to such application for a patent;" and, so far as regards time, this provis-
ion has been f requently re-enacted, and is still in force. It has never been
considered, however, that this rulè, flrst announced by the suprême court,'
and afterwards madethe subject of législation, has the least application to
uses purely expérimental, made in good faith for the purpose of testing or
perf ecting an invention. The question, how far an invention may be used for
the ^urposes of cxperiment or test, is often a difiScult pne, but the gênerai
raie on this subject, particularly when the question of sales cornes in, is well
stated by Judge BLODQETTin the fôregoing opinion: "ïhe law permits aa
inventor to construct a^ machine which he is engaged in studying upon and
developing, and place it in friendly hands for the purpose of testing it, tod
ascertaining whether it will perform the functions claimed for it, and if thèse
machines are strictly expérimenta, made aolely with the view to perfect the
device, the right of the inventor remains unimpaired; but when an inventor
puts his incomplète or expérimental device upon the market, and sells it, as
a manufacturer, more than two years before he applies for his patent, he givea
to the public the device in the condition or stage of development in which he
sells it." And so it is always to be borne in mind that there is a clear dis-
tinction between mère expérimenta and ordinary uses or sales made for other
purposes than testing or perf ecting an invention.
ExPïaiiMENTs Encottbaqed. Patents are only to be granted for useful
inventions, ana to prevent their being issued for crude, imperfect, or im-
praoticable ones, the law encourages, not to say requires, an inventor to make
proper experiments to fuUy test and détermine the praetical utility of his in-
vention before applying for a patent. "He is the flrst inventor, in the sensé
of the aet, and entitled to a patent for his invention, who has flrst perfected
and adapted the same to use; and until the invention is so perfected and
adaptedto use it is not patentable. An imperfect and incomplète invention,
resfcing in mère theory, or in intellectual notion, or in uncertain experiments,
and not actually reduced to practice, and embodied in some distinct ma-
chinery, apparatus, manufacture, or composition of matter, is not, and in-
•Pennock v. Dialogue, 2 Pet. 22. «Nelson, J., in Wilson v. Rousseau, 4
*MeUuav.Silsbee,4Mason,108; IRob. How. 674. See, also, AmericaB Leather
509. Co. V. American Tool Co. 4 Fisher, 294 ;
'Treadwell v. Bladen, 4 Wash. 703; 1 Dudley v. Mayhew, 3 N. Y. 9.
Rob. 539. 8 Pennock v. Dialogue, aupra
*Shaw V. Cooper, 7 Pet. 292.
LÏMAK V. UÀtPOh^. 739
deed cannot be, patentable under our patent acts; since it îs utterly iiripôssi-
ble under such circumstances to comply with the fundamental requisites'of
those acts," ' Justice Cliffokd quotes this language in White v.Allen,^ but'
first says: " While the suggested imprbvement, however, rests merely in the
mind of the originator of the idea, the invention is not cômpleted within the
meaning of the patent law, nor are crude and imperfeet experiments suffl-
cient to confer a right to a patent; but in order to constitute an invention in
the sensé in which that word is etnployed in tlie patent act, the party alleged
to hâve produced it must hâve proceeded so far as td hâve reduced his idea
to practice, and embodied it in some distinct form.^ Mère discovery of an
improvement does not constitute it the subject-matter of a patent, although
the ideas which it involves may be new; but the new set of ideas, in order
to become patentable, must be embodied into working machinery and adapted
to practical use. "*
"The relation borne to the public by invefntors, and the obligations they
are bound to f ulfiU in order to secure from thé former protection and the right
to rémunération, by no means forbid a delay requisite for completing an in-
vention, or for a test of its value or succèss by a séries of sufBcient and prac-
tical experiments; nor do they forbid a disereet and reasonable forbearance to
proclaim the theory or opération of a discovery during its progress to comple-
tion, and preceding an application for protection in that discovery. The
former may be highly advantageous, as tending to the perfecting the inven-
tion ; the latter may be indispensable, in order to prevent a piracy of the rights
of the true inventor. " ^
"It is when spéculation has been reduced to practice; when experiment has
resulted in discovery, and when that discovery has been perfected by patient
and continued experiments; when some new compound, art, manufacture, or
machine has been thus produced, which is usef ul to the public, — that the party
making it becomes a public benefactor, and entitled to a patent. " «
"When the idea flrstenters into the mind of the inventor, it is almost nec-
essarily in a crude and imperfeet state. His mind will naturally dwell and
reflect upon it. It is not until his reflectîons, investigations, and expéri-
menta hâve reached such a point of maturity that he not only has a clear
and definite idea of the principle, and of the mode and manner in which it is
to be practicaUy applied to useful purposes, but has reduced his idea to prac-
tice and embraced it in some distinct form, that it can be said he has achieyed
a new and useful invention." '
"The terms • being an experiment,' and ' ending in experiment,' are used
in contradistinction to the term ' being of practical utility.' Until of prac-
tical utility, the public attention is not called to the invention; it does not
give to the public that which the public lays hold of as beneflcial." »
"If he has been practicing his invention with a view of improving it, and
thereby rendering it a greater beneflt to the public before taking out a pat-
ent, that ought not to préjudice him. " *
"Crude and imperfeet experiments are not sufflcient to confer a right to a
patent; but in order to constitute an invention the party must hâve pro-
ceeded so far as to hâve reduced his idea to practice, and embodied it in some
distinct form."»»
»Story, J,, in Reed v. Cutter, 1 Story, •Grîer, J., in lîoberts v. Eeed Torpédo
590; 2 Kob. 90. Co. 3 Fisher, 631.
»2 Pisher, 446. 'Joues, J., in Matthews v. Skatea, 1
'Gaylor v. Wilder, 10 How. 498; Park- Fisher, 606.
hurst V. Kinsman, 1 Blatchf. 494; (^urt. 'Sprague, J., in Howe v. tinderwood, t
Pat. 3 43. Pisher, ]66.
*Sickles v. Borden, 3 Blatchf. 535. «Morris v. Huntington, 1 Rob. 455.
'Daniel, J., in Kendall v. Winsor, 21 "Seymour v. Osborne, 11 Wall. 552. As
How. 328. to this général question of experiments,
740 FBDEBAIi BEPOBTEB.
Diligence Eequired. Although an inventer îs thus allowed and encour-
aged to make such experiments aa will f ully test and détermine the practical
utility of Lis invention, still lie must exercise due diligence, and not be un-
reasonably slow in making them. "If an inventor should be permitted to
bold back from tlie kuowledge of the public tlie secrets of liis invention; if he
should for a long period of years retain the monopoly, and make and sell his
invention publicly, and, thus gather the whole profits of it, relying upon his
superior skill and knowledge of the structure, and then, and then only, when
the danger of compétition should force him to secure the exclusive right, he
should be allowed to take ont a patent, and thus exclude the publie from any
farther use than what should be derived under it during his lourteen years,
it would materially retard the progress of science and the useful arts, and
give a premium to those who should be least prompt to communicate their
discoveries." '
"The question of diligence is not an absolute but a relative one, and must
be considered in référence to the subjeet-matter of the experiments. Could
the value and practical utility of such an invention be sooner ascertained?" ^
It must also be considered with référence to the position and circumstances of
the inventor. "The law means, by invention, not maturity. It must be the
idea struck out, the brilliant thought obtained, the great improvement in
embryo. He must hâve that; but if he has that he may be years improving
it— maturing it. It may require half a life. But in that time he must hâve
devoted himself to it as much as circumstances would allow. * « * You
would not trip up a man of genius, who had made a discovery, in conséquence
of a want of means to prosecute his labors to their final consummation, if you
thought he intended to persévère." * "There must be what we would consider
reasonable diligence, looking at ail the facts of the case." * "But mère for-
bearanee to apply for a patent during the progress of experiments, and until
the party has perfected his invention and tested its value by actual practice,
affords no just grounds for any such presumption" of abandonment.* "The
question of abandonment * * * is a question of fact, and to be deter-
mined by the évidence. Lapse of time does not, per se, constitute abandon-
ment. It may be a circumstance to be considered. The circumstances of the
case, other than mère lapse of time, almost always give complexion to delay,
and either excuse it or give it conclusive eflfect. The statute has made con-
temporaneous public use, with the consent and allowance of the inventor, a
bar, when it exceeds two years. But in the absence of that, and of any other
colorable circumstances, we know of no mère period of delay which ought,
per se, to deprive an inventor of his patent." *
"It should always be a question submitted to the jury, what was the intent
of the delay of the patent, and whether the allowing the invention to beused
without a patent should not be considered an abandonment or présent of it to
the public' But "the objection rests upon the principle of forfeiture, and is
see, also, Whitely V. Swayne, 7 Wall.687; *Dnimmond, J., in Cox v. Griggs, 2
Draper v. Potomska Mills Corp. 3 Ban. Fisher, 177.
& A. 215; N. W. Fire Exting. Co. v. Phil- 'Agawara Co. v. Jordan, 7 Wall. 607 ,
adelphia Fire Exting. Co. 1 Ban. & A. Jones v. Sewall, 6 Fisher, 365; Locomo-
189; Albright V. Celluloïd Harness Trim- tive Engine Safety Truok Co. v. Pennsyl-
ming Co. 2 Ban. & A. 635. vania II. Co. 1 Ban. & A. 483 ; Miller
iPennockv. Dialogue, 2 Pet. 19; Ken- v. Smith, 6 Fed. Rep. 364; Webster v.
dall V. Winsor, 21 How. 330. New Brunswick Carpet Co. 1 Ban. & A.
" Nixon, J., in American Nioholson 91 ; Kelleher v. Darling. 3 Ban. & A. 448.
Pavement Co. v. City of Elizabeth, 6 «Woodruff, J.. in Eussell & Erwin
Fisher, 432. Manuf'gCo.v.Mallory,5Fisher,641 ; Ben-
'Woodbury, J., in Adams v. Edwards, edict, J., in Andrews v. Carman, 2 Ban, &
1 Fisher, 7, 11. See, also, Smith v. Good- A. 295.
year D. V. Co. 93 U. S. 491 ; Sprague v. ' Morris v. Huntington, 1 Paine, 348 ; 1
Adriance, 3 Ban. & A. 124. Kob. 455 ; Shaw v. Cooper, 7 Pet. 316.
LTMAN V. MAYPOLB. 74l
not to be favorably regarded. Every reasonable doubt should be raised
againstit."!
KiNDS OF ExPBBiMENTS. Of course, the character of an inventor'g tests
or experiments must dépend largely on the nature of his inTention.^ "Some
inventions are by their very character only capable of being used where they
cannot be seen or observed by the public eye. An invention may cônsist of
a lever orspring hidden in the running gear of a watch, or of a ratchet, shaft,
or cog-wheel covered from view in the recesses of a machine for spinning or
weaving. Nevertheless, if its inventer sells a machine of which his Inven-
tion forms a part, and allows it to be used without restriction of any kind,
the use is a public one. So, on the other hand, a use necessarily open to pub-
lic View, if made in good faith, solely to test the qualities of the invention
and for the purpose of experimeat, is not a public use within the meaning of
the statute." 2
"Whenthesubject of invention is a machine, it may be tested and tried in
a building either with or witiiout closed doors. In either case such use is
not a public use, within the meaning of the statute, so long as the inventor
is engaged in good faith in testing its opération. He may see cause to alter
it and improve it or not. His experiments will reveal the fact whether any
and what altérations may be necessary. If durability is one of the qualities
to be attained, a long period, perhaps years, may be necessary to enable the
inventor to discover whether his purpose is accomplished. And though dur-
ing ail that period he may not flnd that any changes are neeessaiy, yet he may
bejustlysaidto be using his machine only by wayof experiment; and no one
would say that such a use, pursued with a bona flde intent of testing the
qualities of the machine, would be a public use within the meaning of the
statute. So long as he does not voluntarily allow others to make it and use
it, and so long as it is not on sale for gênerai use, he keeps the invention un-
der his own control, and does not lose his title to a patent. It would not be
necessary, in such a case, that the machine should be put up and used only in
the inventor's own shop or premises. He may liave it put up and used in
the premises of another, and the use may inure to the beneflt of the owner of
the establishment; still, if used under the surveillance of the inventor, and
for the purpose of enabling him to test the machine, and ascertain whether
it will answer the purpose intended, and make such altérations and improve-
ments as expérience demonstrates to be necessary, it will still be a mère ex-
périmental use, and not a public use within the meaning of the statute." *
"Nor has it any bearing upon the case that Smith's experiments were made
in public, and that his expérimental engines were run upon.a railroad that
was a public highway, Thus only could the invention be tested. There is an
iBirdaall v. McDonald, 1 Ban. & A. see Shaw v. Cooper, 7 Pet. 322; Wataon v.
167 ; Henry v. Franoestown Soap-stone Bladen, 1 Rob. 514 ; Sanders v. Logan, 2
Stove Co. 2 Ban. & A. 224 ; American Fisher, 167 ; Worley v. Tobacco Co. 104 TT.
LeatherCo.v. American Tool Co. 4 Pisher, 8. 340 j Sisson v. Gilbert, 5 Fisher, 112;
291 ; Jones v. Sewall, 6 Fisher, 368 ; Jen- Perkins v. Nashua Gard & Glazed Paper
nings V. Pieroe, 3 Ban. & A. 365 ; Gra- Oo. 2 Fed. Kep. 451 ; 6 Ban. & A. 398 ;
ham V. McCormick, 11 Fed. Eep. 863; 5 Edgerton v. Furst& Bradley ManufgCo.
Ban. & A. 249 ; Eraery v. Cavanaugh, 17 9 Fed. Kep. 450 ; Clark Pomace-holder
Fed. Rep. 243 ; Hovey v. Henry, 3 West. Co. v. Ferguson, 17 Fed. Eep. 79 ; Jfanning
Law J. 163. V. Cape Ann Isinglass & Glue Co. 2 Sup.
As to effeot of délaya in the patent of- Ct. Bep. 860 ; Kells v. McKenzie, 9 Fed.
fice atter an application haa been filed, see Eep. 284.
Pianing Machine Co. v. Keith, 4 Ban. & 2 Woods, J., in Egbert v. Lippmann, 104
A. 100; 101 U. S. 479; Adams v. Jones, 1 0.8.336. See, also, Elizabeth v. Pavement
Fisher, 527; Bevin v. East Hampton Bell Co. 97 U. S. 126; Shaw v. Cooper, 7 Pet.
Co. 6 Fisher, 23 ; McMillin v. Barclay, Id. 292.
200 ; and for particular cases in which use ' Bradley, J., in EUzabeth v. Pavement
has been held not to hâve been experi- Co. 97 U. S. 134.
mental, but snfficient to invalidate patent,
742 KEDEEAL EEPOBTEB.
obvions dîsUnotton hetioeen a publia use, or a use by the public, and an expéri-
mental use in publia. In many casea it lias been decided that a use in public,
for test or experiment, is net such a public use as was contemplated by the
act of congress, nor such a use as can be held évidence of dedication to the
public. i?he Nioholson Pavement Casewda notably one." ' "Public use in
good faith for expérimental purposes, and for a reasonable period, even bofore
the beginning of the two years of limitation, cannot affect the rights of tho
inventer." ^ "I agrée his acts are to be construed liberally ; that he is not to
be estopped by licensing a few persons to use his inve^ntion to ascertahi its
utility, or by any such acts of peculiar indulgence and use as may fairly con-
sist with the clear intention to hold the exclusive privilège." * "It is clearly
immaterial whether the experiment be made by himself or by others; the only
question being, is he the original inventer- of an art not before known or
nsed?"^ "It does not appear to me that the submitting of an invention to
the test of examination by experts, in compétition with other inventions, ia
the public use to which the statute refers. A use for the mère purpose of
compétitive examination, experiment, and test, is not a public use." ^
"I consider it too nice a point to say that the future patentée, when he
permita a person to test his tool by a short use with a view to interest him in
its being patented, is not testing his tool, but only the mind of the borrower. '
I do not know that an inventor is bound to satisfy his own mind alone by his
experiments. The question to be determined is, not only whether the tool
will work, but in what modes and with what advantages over old tools; how
weU it will work, and how cheaply; and I am of opinion that he may, in such
a case as this, test not only its patentability, but the degree of it, if I may so
say; that is, whether it is worth while to patent it. I must not be under-
stood as speaking of a case in which the tool or thing patented haa been sold
more than two years before the application. " *
"The évidence does not show any such public use or sale, with the consent
of Dodge, for two years prior to his application, as would work a forfeiture
of his patent. There is one case only of a sale clearly proved before February
14, 1855, and no évidence tending to show more than two or three sales be-
fore that time, and ail of them accompanied with a notice of an intention to
apply for a patent, and ail of thèse during the time when he was experiment-
ing upon and before he had perfected his invention, and attained sufHcient
perfection in the castings to satisfy him that his invention was practically
suecessful. As in most, if not in ail, of thèse instances the stoves were de-
livered on trial, to be returned if the invention did not work satisfactorily,
they are to be regarded rather in the light of such practical tests as the law
permits an inventor to make, than as such public sales as would tend to show
abandonment, or mislead the public into a belief that the inventor had made
a dedication to the public. "' On a rehearing of this case Judge Lowell took
a différent view as to the efEect of thèse sales, and held that the mère fact
that they were conditional did "not, without further explanation, prove that
they were expérimental, " and that "the évidence should be unequivoeal that
a test of the invention was one of the purposes of the seller." *
iStrong, Jy in Locomotive Engine 'Shipman, J.,ln XT. S. Eifle cSs Cartridga
Safety Truok Co. v. Penusylvania R. Co. 1 Co. v. Whitney Anns Co. 2 Ban. & A. 501.
Ban. & A. 484. ^ Lowell, J., in Sinclair v. Backus, 4
«Birdsall v. McDonald, 1 Ban. & A. Fed. Rep.542; 5Ban. &A. 84.
167 ; Henry v. Francestown Soap-atone ' Shepley, J., in Henry v. Franoestown
Stove Co. 2 Ban. & A. 223. Soap-atone Stove Co. 2 Ban. & A. 224.
'Story, J., in Mellus V. Sihbee, 4 Ma- 'Henry v. Francestown Soap-stone
son, 108 ; 1 Rob. 509. See, also, Jones v. Stove Co. 2 Ped. Rep. 80 ; 5 Ban. & A.
Sewall, 6 Fisher, 364. 110. See, also, Kells v. McKenzie, 9 Fed.
^Washington, J., in Pennock v.. Dia- Rep. 284.
logue, 4 Wash. 538 ; 1 Rob. 472.
LYMAN P. MAXPOLE^ 743
"It is manifest that the only machine made in 1863, which is distinctly
proved to hâve been sold, was delivered on trial and warranted, and ahoul'd
be regarded rather in the light of a use of the invention for such praotical
tests as the law permits an inventor to make, than as such a public sale or
use as is contemplated by the statute. At that stage of the inventor' s work his
invention was largely in experiment and trial. It could only be tested by
practical use in the field, and it was essential that it should be so tested Jay
farmers on their farms. The inventor was then struggling, as inventôrs
often do, to establish the suceess of his invention. It was necessary thut
thorough expérimental tests should be made, and that he should hâve the
assistance ot others in making them; and it is manitest, we;think, that the
machines of 1863 were not yet so perfeeted as to be practical macfîînes, capa-
ble of successf ni work." *
"If it was merely used occasionally by himself in trying experiments, or if
he allowed only a temporary use thereof by a few persons, as an act of Per-
sonal accommodation or neighborly kindness for a short and limited period,
that would not take away his right to a patent." ^ "ïhe law permits an in-
ventor to construet a machine, * * * and place it in friendly hands for
the purpose of testing it and ascertaining whether it will perform the func-
tions claimed for it." * "The use of an invention by spécial permission of
the patentée is not a use of it by the public. * * . * ■ A right abandoned
to the public, doubtless, cannot be resumed ; but a license restrained to indi-
viduals is not an abandonment." * "But if the inv^itpr allows his machine
to be used by. other persons generally, either vvith or without compensation,
or if it is, with his consent, put on sale for such use, then it would be in
public use and on public sale withîn the meaning of the law." ^ And "to
constitute the public use of an invention it is not n«cessary that more than
one of the patented articles should be publicly used. " *
"He is not allowed to dérive any beneflt from the sale or the use of his'
machine without forfeiting his right, except within two years prier to the
time he makes his application." ' But "it would be a harsh limitation of the
statutory rights of an inventer which should give to a naked infringer the
privilège of using an invention beeause the patentée had attempted, in good
faith and in secrecy, to incidentally make his experiments of some pecuniary
beneflt, while he was patiently en^eavoring, amid many failures, to remedy
the defects of the machine, test its value, and ascertain whether it could be
used advantageously, and whether it ever would be of any beneflt either to
himself or to the' public." * Ând " whilst the supposed machine is in such ex-
périmental use the public may be incidentally deriving a beneflt from it. " "
"When an inventor puts his incomplète or expérimental device upon the
market and sells it, more than two years beforô he applies for his patent, he
gives to the public the device in the condition or stage of development in
which he sells it. * * * His patent cannot be allowed to relate back
and cover the forms of condensers which he gave to the public more than
two years bef ore he applied for his patent. " i"
' Drumraond, J., in Graham v. MoCor- & Glue Co. 2 Sup. Ct. Rep. 860; Worley v.
mick, 11 Fed. Rep. 862 ; 5 Bann. & A. 249 ; Tobacco Co. 104 U. S. 343 ; Jones v. Barker,
and Dyer, .T., in Graham v. Geneva Lake 11 Ped. Rep. 597 : Clark Pomaoe-holder
Crawford Manuf g Co. 11 Ped. Rep. 142. Co. v. Perguson, 17 Ped. Rep. 83.
«Storv, J., in Wyetli v. Stone, 1 Story, , 'Nelson, J., m Pitts v. Hall, 2 Blatohf.
273;2Rob. 30. 235. See, also, Consolidated Pruit-jar Co.
'Blodgett, J., in Lyman v. Maypole, v. Wright, 94 U. S. 94; Jones v. Réwall, 6
Bupra. Piaher, 364.
*McKay V. Burr, 6 Pa. 1S3. «gypuian, J., in Jennlpgs v. Sierce, 3
•Elizabethv. Pavement Co. 97 U.S. 135. Ban. & A. 365.
•Egbert v. Lippmann, 104 U. S. 836; « Elizabethv. Pavement Oo. 97 tf. S. 135.
Consolidated Pruit-jar Co. v. Wright, 94 '" Blodgett, J., in Lyman v. Maypole,
tJ. S. 94 ; Manning y. Cape Ann Isinglass supra.
7ii FEDEBAL BEFOBTEB.
As TO Design I'atents. Thèse rules also apply to design patents. "The
law applicable to this class of patents does not materially difler f rom that
in cases of mechanical patents. * * * The same gênerai principles of
construction extend to both." i " Aninventor is not perinitted to exhibit his
skill and taste in décorative art by the publication of élégant designs througk
a course of years, and then debar the public from any further use by obtain-
ing letters patent for the same." "
It will be observed that I hâve simply collated the authorities, and made
but few comments and no criticisms. The language of some of the cases,
particularly when they speak of the inventor's "consent and allowance,"
should be understood with référence to the law then in force or governing
the décision; but this does not affect their bearing on the gênerai question of
experiments. As to this question the following principles may be considered
a"; fully estabUshed: (1) The law permits and encourages proper experi-
ments to test and détermine the practical utility of an invention ; (2) thèse
experiments must be made with reasonable diligence, considering ail the cir-
cumstances of the case; (3) they may be made secretly or in public, by uses or
sales, and by the inventer personally or through others; (4) they must not be
for profit, but for the honest purpose of testing and perfecting the invention;
and (5) where improvements are added within the two years, the patent
cannot be allowed to relate back and cover forms previously given to the
public. Ephraxm Bannino.
Chicago, March, 1884.
*Brown, J., in Northup v. Adams, 2 'Nixon, J., in Theberath v. Celluloïd
Ban. & A. 568; Blodgett, J., in Western Harnesa Trimming Co. 15 Fed. Rep. 250.
Electric Manufg Oo. v. Odell, 18 Fed. Rep.
322.
DoTLB V. Spaulding and others.
Illingwobth v. Same.
(Circuit Cowt, D. New Jersey. March 15, 1884.)
1. Patent— iNPBitfGEMENT.
Infringement of patent for the manufacture of combined ingots of îron and
Bteel by means of monlds and a mechanism producing a variable cavity in the
moulds.
2. Same — Invention in a Foreign Countrt.
The use or knowledge of the use of an invention in a foreign oountry by per-
sons residing in this country wlll not defeat a patent which had beengranted to
a bonaflde patentée wno, at the time, was ignorant of the existence of the in-
vention or its use abroad.
In Equity.
J. G. Clayton, for complainants.
Francis Forbes, (with whom was A. Q. Keashey,) for défendants.
Nixon, J. Thèse two cases will be considered together, for rea-
sons which will hereafter appear. On March 5, 1881, the complain-
ant, Illingworth, commenced a suit in this court against the defend-
rnts for infringement of letters patent No. 166,700, dated August 17,
SOTLB V. SFAULDING. 7é5
1875, for "improvements in moulds for ingots." The, défendants an-
swered, setting up, among other things, that said letters patent were
void (1) on account of prior knowledge and use of the alleged inven-
tion; (2) because every substantial and material part of the inven-
tion was described and claimed in letters patent No. 99,299, and
granted to one Patrick Doyle, February 1, 1870, for "improvement
in moulds for making combined ingots of steel and iron, " and in Eng-
lish letters patent No. 3,801, issued to William Moore by the queen
of Great Britain and Ireland, dated November 21, 1873, and sealod
May 19, 1874; and (3) denying the right of the complainant to re-
cover, because the défendants were the assignées and owners of let-
ters patent No. 240,727, granted to one Alfred B. Jones, and were
entitled to use the invention therein described and shown, notwith-
standing the letters patent of complainant, on which the suit was
brought.
It appears in the testimony that for several years previous to the
filing of the bill, two of the défendants, Fitzsimmons and Jennings,
were in the employ of the oomplainant's firm, and thèse became fam-
iliar with the use of moulds made under the Doyle patent, which is
set up as anticipating the alleged invention of lUingworth. It also
appears that the complainant used the Doyle patent for several years
previous to 1875, in the manufacture of iron and steel ingots, the in-
venter Doyle, during the time being in business with the complain-
ant; that the above patent was obtained by Illingworth in view of
the fact Doyle was about going out of the firm, after which, it was
supposed, that the continued use of his patent would not be allowed;
and that he went out and remained away from the complainant from
1875 to 1880, when he returned and became the superintendent of
his Works.
On the seventh of May, 1881, Patrick Doyle began his suit against
the défendants for the infringement of the letters patent, which had
been set up in the former action as anticipation of the Illingworth
patent. The answer of the défendants dénies (1) that Doyle was the
original and first inventer of the improvements therein claimed, and
(2) allèges that every substantial and material part of the invention
was known to several persons now residing in this country, and by
whom it had been used in Sheffîeld, England, during their résidence
there.
Pending the taking of testimony in thèse suits, two applications
were made to the court by the respective parties — one by the défendants
in the Illingworth suit, asking that they might be aUowed to amena
their answer by inserting the allégation that the invention claimed by
Illingworth was known to certain persons residing in this country, who
used it in the city of Sheffîeld, Eagland, before coming hither; and
the other by the complainant in the Doyle suit, who moved to strike
out the said allégation in the answer filed therein. The questions
involve the interprétation of the clause, "not known or used by others
746 FEDEEA.L EEPOBTEB.
in this country," in section 4886 of the Eevised 'Statutes, wliich first
appeared in section 24 of the act of July 8, 1870, and which had
never received judicial construction. Being willing to afiford the par-
ties an opportunity, without embarrassment, to correct any mistake
which the court might fall into in deciding a matter of first impres-
sion, we allowed the allégation to stand in the answer in the Doyle
suit and to be inserted in the Illingworth answer, and directed the
parties to make their proofs of the.facts and to présent their views
more fuUy at the final hearing. See Illwgworth v. Spaulding, 9 Fed.
Eep. 611, After a careful considération of the provisions of the three
sections of the patent act which bear upon the subject, (sections 4886,
4920, and 4923, Eev. St.,} we are of the opinion that the use, or a
knowledge of the use, of an invention in a foreign country by persons
residing in this country will not defeat a patent which has hère been
granted to a honafide patentée who at the time was ignorant of the
existence of the invention or its use abroad.
When the parties began to take the proofs they united in a stipu-
lation that the évidence should be entitled in bqth causes, and that
the two should be argued together. The défendants also admitted in
writing, in each of the cases, that before the commencement of the
suits, and since the granting of the letters patent, respectively, they
had manufactured combined ingots of iron and steel in the following
manner and for the following purposes :
(1) By means of a mould made in conformity to letters patent of the United
States, No. 24(>;727, granted to them April 26, 1881, as assignées of Alfred E.
Jones, a copy of which is hereto annexed, marked Complainants' Exhibit
"Jones' Patent."
(2) By means of a mould made with two covers, in ail respects like that
shown in the above-named letters patent, except that there Were twp covers
instead of one, and the slide was omitted. The covers are so made that a part
of thecover first used projects into the mould. The process is asfoIloWs:
The mould being clamped together.the flrst métal tobe cast ispoured into it,
and, when sufflciently set, the cover is removed and aaecond one, perfectly flat,
is inserted in its place. When this is done there remains a space between the
newly-cast métal and the side or coyér of the mould into which is cast the re-
maining part of the "ingot. The mould is ShoWn in the mode], complainants'
Èxhibit E, wherè both covers àrè ttséd aiid the slide is omittôd — one eover
havinga projection into the mould and the other being flat.
(3) By means of a mould of three parts, each part being composed, as usual ,
in two-part moulds, of three sidès rising from a closed base. The opération
of the mould is as follows: The two parts of the mould are joined together
In the usual manner by rings and wedgés, and an ihgot is cast therein in the
usual way. Immediately that the' métal is set, one side of the mould is re-
moved and another, a little larger, is flxed by rings and wedges in the place
of the side removed. Into the space. thus made,, adjacent to theglowing in-
got of métal, the molten métal, to complète the igiiot, is prii-ed. When suf-
flciently cooled the combined ingot is removed, a&. is usuàii^ ionô in ingot
motflds of two parts. This'moulffts represented by complainant'â Exhibit
F. The size and proportions of the parts; however, are not correct; only the
arrangement and opération of the parts are intended to be illustrated.
(4) By means of a mould of two parts, in which one of the parts is like the
DOÏLE V. SPAOLDIKG. '74*7
ordinary two-part mould, viz., with three sidéa and aliottbm, the other part
being made flat on one side, and with a projection on the other, so arrangea
as to Project between the sides and into the other part, when the twp arje
joined together. The opération of the moûld is as follows: The two parts
of the mould being joined together by rings and wedges, in the usnal wày,
(the projecting part of one side extending into tlie reoess in the other,) the
métal is cast intO it; and when the métal is set, the side with the projection
is removed and turned so that its flat side is towards the center of the mould;
there is thus left an open space in the mould into whieh is cij^st the métal
which is intended to complète the ingot. The combined ingot is removed in
the ordinary way of removing single ingots. This ■ mould is represented by
complainant'sExhiblt G. The same limitation!» made in regard to this
exhibit as to Exhibit F, above. . ^o
(5) By means of a mould simiiar to that last described, with the exception
that instead of one cover there are two— one being, flat, and one having a pro-
jection on its inner surface, as just described. The opération is the same as
of Exhibit G, with the exception that instead of turning the cover so that the
projection shall be outermost, the flat cover is used. This mould is repre-
sented by Exhibit H. The same limitation is made to this exhibit as to Ex-
hibit F, above. Francis Fobbes,
Soliciter for the Défendants in the Above Causes.
HewarTi, New Jersey, Octoher 8, 1881.
The subject-matter of the controversy has référence to the use ot
moulds in casting combined ingots of iron and steel. The patent oldest
in date for the employment of mechanism for such a purpose was
granted to Patrick Doyle on February 1, 1870, and numbered 99,-
299. The patentée says that his invention relates to improvements
in moulds for making ingots of iron and steel in a nïanner so as to
dispose of the one métal on one or more sides of the other, and to se-
cure a perfect union of the two ; and that it consists of a vertical
mould of four or other number of plain sides^ one or more of which
may be détachable and clamped to the otbera by strong bands, in
which a strong thick plate of métal is arranged to fit near one side,
from top to bottom, snugly, to occupy a part of the space when the
métal, of which the greater part of the ingot is to be^ composed, is
poured in, and to remain until the same bas solidified suffioiently to
retain its position, when it is -withdrawn, leaving a space for the
other métal, which, being poured in, unités perfectly with the first,
and forms the requircd composition ingot.
In introducing his spécifications, the patentée speaks of bis inven-
tion as an improved mould for making combined iron and steel ingots,
thereby implyingthat other moulds were in use, of which he regarded
his as an improvement. Not only the scope of this patent, but the
validity of the subséquent issues to Illingworth and Jones, mnst be
determined by the state of the art at the time when the Doyle patent
■^as granted. The évidence on this subject is meager. After look,
ing through the testîmony with care, -we faiil to find anythîng relat-
ing to the state of the art, except the statement of Mr; lUingworth,
that he had been engaged in the steel business for 17 years; that
prier to Doyle's invention he had ^never seen any moulds or other
748 FBDEBAL BBPOETER.
mechanism with which skate métal, which was a combination of steel
and iron, could be made ; that the only mode of manuf aeturing such
a combination, of which he had any knowledge, was to weld together
the iron and steel intoone bar, and then rôlling it out; and that this
was the only method then in use at bis works. Accepting this as
the state of the art at this time, it must be conceded that there was
novelty and value in the Doyle improvement. It was a step from the
mère mechanical combination by welding, to a chemical one result-
ing from the fusion and union of the two metals when in a heated
state. It was the introduction pf the variable cavity, whereby the
amount of the one métal or the other could be accurately adjusted
and obtained by the exercise of ordinary mechanical skill. We are
confirmed in our view of the novelty of the Doyle patent by the fact
that as late as 1873 a patent was granted in England to William
Moore, for substantially the same device for making combined ingots
of iron and steel, securing the variable cavity by the use of a slide,
which would hardly hâve been applied for if such a method of casting
ingots had previously been in use in England as the défendants so
earnestly contend.
On the argument, the counsel for the défendants insisted that the
complainant had failed to prove any infringement. The reason why
spécifie proof was not ofifered was doubtless owing to the circum-
stance that the défendants admitted the performance of acts and the
use of instrumentalities which the complainant assumed would be
sufficient to satisfy the court of the fact of infringement. For instance,
the défendants filed in the cases an admission that they had man-
ufactured combined ingots of iron and steel by means of a mould
made in conformity to the letters patent No. 240,727, granted to them
April 26, 1881, as assignées of Alfred B. Jones. If we understand
the argument of cûunsel, it is that there was a f allure of expert
testimony to inform the court whether or not such an act was an in-
fringement of the several patents of the complainants. We fail to
see how experts' testimony would be of service. Numerous experts
could, undoubtedly, bave been found both by the complainant and
the défendants who would respectively maintain the views of their
employers on a question of that sort, but their évidence would not
greatly help thé court in deciding what is simply a question of mechan-
ical équivalents. Having in our hands the respective letters patent,
the models, and the moulds used, we trust it will not be set down as
presuniption to àdd that we bave quite as much confidence in our
own judgment as we ahould hâve in the opinion of experts whether
the- use of the one was an infringement of the claims of either of the
othere. .' : ■ <
It need not be olaimed that Doyle was the first persoq who used
moulds iili casting ingots of iron or steel; but the évidence shows
thàt he was the fii-st who màhufactured combined ingots of thèse met-
ala by the use of mechanism which produced a variable cavity in the
HICKS V. OTTO. 749
moulds. The several patents of Illingworth and Jones reaoh the same
resuit as to the variable cavity, but Dlingworth has changea and, as
we think, improved the meehanism. In the Doyle patent the cavity
for one of the moulds is made by tJie use of an iron or steel slide, and
in the Illingworth by two covers — one with a plain or straight surface,
and the other recessed. If such a substituted instrumentality of the
meehanism is not a mère équivalent for the métal slide of Doyle, the
patent may be held good for the improvement, although it is valueless
except in combination with Doyle's invention, and can no more be
used without his consent than Doyle can use Illingworth's improve-
ment without his consent.
The^rs* admission of the défendants is their use of moulds made
in conformity to the Jones letters patent. We regard this as a clear
infringement of the Doyle patent. Their second, third, fourth, and
Jîfth admissions embrace the use of instrumentalities which not only
infringe the Doyle invention, but also the improvement of the Illing-
worth patent. There are différences in construction and mode of
opération shown, but thèse are not radical or independent enough to
take them out of the category of mechanioal équivalents.
Let a decree be entered in favor of the complainant in both cases
for an injunction, and the usual order of référence be made for an
account.
HioKS ». Otto and others.
{Circuit Court, 8. D. New York. March 18, 1884.)
1. Patent— VAiiiDirr op Rbissub— Clinical Thbkmometeb.
The origioal patent for a clinical thermoineter, in place of which reissued let-
ters No. 10,189 were taken out, was broad enough to cover a tube in which the
mercurial column is magoiflea bymeans of a raised ridge having a sharper
curvature than the main shaft, even though the column is not placed beyond
the mecbanical center of the main tube. The reissue, therefore, more specif-
ically describing this device, is valid.
2. Samb — Pbiob Use — Location of the Borb.
The characteristic of this patent is that the bore is back of the mechanical
axis of the curved surface through which it is viewed. Prier use of a so-called
magnifjing tube, with the bore at the center or in front of it, does not defeat
the patent.
In Eqliity.
Frost é Ooe, for plaîntiff.
Briesen <è Steele, for deienàanta.
Wallaob, J. Infringeihent is alleged of the first and second clâims
of reissued letters patent No. 10,189, granted August 29, 1882^ to L.
Teroni, assignor of James Joseph Hicks, for ah improvement in ther-
mômeters, The invention of Peroni was paterited in Englàûd, Jan-
uaiy 24, 1878, and the oiriginal patent hère was issuedDeeember 9,
750 FEDEBAL EEPORTEIl.
1879. It relates to the class of thei-mometers known as clinîcal ther-
mometers, in whieh it is désirable that the bore should be as small
as possible in order that the column of mercury may respond rapidly
to changes of température at the bulb. The employment of a bore
almost microscopic in its caliber nécessitâtes the use of a magnitying
lens ; otherwise it is very difficult to detect the exact point in the bore
at which the mercury stands. Peroni's improvement is directed to
such a construction of the glass tube surrounding the bore for the
mercury column as wiÛ increase the lens power of the tube.
The défenses principally relied upon, besides that of non-infringe-
ment, are : (1) That the reissue is void, being for that which waa
abandoned on the application for the original patent, and as enlarg-
ing the claim of the original; (2) anticipation by description in prior
foreign publications ; (3) prior public use.
The spécification of the original patent follows Verbatim that of the
English patent. The invention is substantially described as consist-
ing in looating the bore for the mercury in the glass tube beyond the
mechanical center or axis of the magnifying curves of the tube. This
involves disearding the oircular glass tubes commonly used, and em-
ploying those in which there is a convex surface so located as to be
eooentric to the bore. Seyeral illustrations are given to show how
the bore is located when the magnifying surfaces of the tube differ
in their form and location, and ail of which eshibit how the scientifio
fact is utilized, that the apparent size of an object is magniûed more
when it is beyond the mechanical center of the convex face through
which it is viewed than when it is located at the center of the arc
formed by the convex facô. There were two daims in the original:
(1) A thermometer tube having its bore out of or beyond the me-
chanical axis or center, as and for the purposes described. (2) A
thermometer tube having its bore out of or beyond the center thereof,
and a curved portion or portions for magnifying said bore, substan-
tially as set forth.
It is'insisted for the défendants that thèse claims are intended to
emphasize the theory that the invention consisted of a tube, in which
the bore was to be outside the center of the tube, and were intended
to limit the patent to such an invention, and that this was done in
order to obviate the danger that the claims would otherwise be an-
ticipated by the Negretti and Zambra English patent of 1852, al-
though the language of the claims, read without a careful analysis of
the spécification, would seem to limit them to a tube in which the
bore is out of or beyond the center of the tube itself. The first claim
is certainly capable of a construction as broad as the invention de-
scribed in the spécification, and, if the case were now hère upon that
claim» siioh would be the construction which it would reoeive. The
mechanical axis or center referred to in the claim would be construed
to refer to the mechanical axis or center of the convex or curved sur-
face of the tube. There was nothing in the prior state of the art to
- HIÔKS ». OXIO. . Ï51
rec[uire a more limiteà construction to the daim. The Negretti and
Zambra patent merely describes a tbermometer with a flat glasstube,
instead of a round one. It nowhere suggestp the existence of any
magnifying effect by reason of the change in the form of the tube or
the location of the bore. So far as appears, Peroni was the first to
suggest this, A référence to Peroni's English patent shows tbat in
the claim he specifioally stated the nature of his invention to eonsist
in making tubes in which the bore is out of or beyond the mechanieal
axis or center of the magnifying curve. In the spécification of his
original patent hère he describes one form of tube, which has a
curved top and perpendicular sides, and another in which thecurves
are located betweenthe top and the sides, which hestates, "by reason
of the bore being beyond the mechanieal center or axis of such curves
act as magnifying curves or lenses, and thus magnify the appearance
of the bore more than is the case when the bore is placed in the me-
chanieal center or axis of the tube or of the curved portion of the
tube." Again, he représenta a diiïerent section. of tubing, with hia
invention applied thereto, and states :
"In this case the tube is mainly circular in section, and the bore is in the
center of the main portion tliereof, but the tube is formed with a curved por-
tion standing up above the gênerai surface of the tube, and, by reason of the
bore of the tube being beyond the mechanieal axis or center of such raised
curved portion, the latter acts as a lens or magnifying curve, and greatly mag-
nifies the appearance of the bore."
AU this ia quite inconsistent with a construction of the first claim
that would limit the invention to one in which the bore is out of or
beyond the mechanieal axis or center of the tube itself.
In the reissue the spécification has been amended so as to express
clearly what was plainly suggested, but left to be spelt out by infer-
ence in the original. This has been done by a stàtement of the prin^
ciple of his invention and a more spécifie description of the means
employed to carry it out. The first claim of therèissueis:!'-A ther-
mometer having its bore in rear of or beyond the mechanieal axis
or center of the convex surface through which it is viewed, as and for
the purpose described." The second is: "A thermometer having a
convex or lens front for magnifying the bore, formed of a smaller
curve than that of the body of the thermometer^ substantially as set
forth." The second claim, as also the third, (which is not involved
in this suit,) cover détails of construction described in the spécifica-
tion, but the first claim is broadly for the principle and means of pr»-;
ducing the magnifying effeCt as described in the speeificatiott. Whilô
any uncertainty which existed in the first clarim of the original pat-
ent is eliminated by the first claim of the reissue, it is not an broader
or a différent claim, upon a fair and reasonablé construction of that
claim ih the original. What hàs alrôady been said conceming the
Negretti and Zambra patent' disposes of any diéfense'of anticipation
Testing upon that patent. - ...■.,
752 FBDEBAL BEPOBTEB.
Eeliance îb also placed ou a printed publication, whioh was a cat-
alogue ciroulated by the défendant in 1876, in whioh he advertised
thermometers for sale. One of thèse, designated as No. 450, is de-
scribed as one "with an oval back and front." Another (No. 451) is de-
scribed as one "with flat back, the front made in the form of a lens,
so as to magnify the mercurial column." Neither of thèse descrip-
tions suggest a tube in which the bore is so looated as to be beyond
the center of the lens or curved surface through which it is to be viewed.
The défense of prier use is not satisfactorily established by the évi-
dence. So far as it rests upon the thermometer of Hicks, sold in this
country, those of the class described as No. 450 in his catalogue, and
which were made with a flat back and front so that they would not
roU off a table when in use, if they magnified the column at ail, they
did so in a hardly appréciable degree, and were of no praetical utility
in that behalf. The class described as No. 451 was passed upon by
the patent-office before granting the reissue, and held not to show the
invention of Peroni. Although they had been described in complain-
ant's catalogue as magnifying the mercurial column, the proofs show
the bore to bave been located between the lens surface and the cen-
ter of the arc of the lens, and consequently the magniflcatiou was
much less than that produced by Peroni, and did not involve his prin-
ciple. As to the thermometers made and sold by Adolph Bayer, the
évidence indicates that although he made half a dozen or a less num-
ber on one occasion, they were made experimentally, and the resuit
was not sufficiently encouraging to induce him to repeat the experi-
ment. He was a manufacturer and dealer in the article. The Peroni
thermometer was a success as soon as it was introduced to the trade,
while Bayer's fell still-born upon the current. The proof is not sat-
isfactory that they were a praetical success, but, on the contrary, in-
dicates that they belong to the catalogue of abandoned experiments.
The spécimen exhibited was made years later, for the purpose of
meeting a motion for an injunction in a suit brought upon the com-
plainant's patent. Without oonsidering with particularity the other
instances of prior use relied upon, it suffices to say that the défend-
ants' case fails to meet and overthrow the presumption arising from
the grant of the patent by such cogent and satisfactory proof as the
rule of law applicable to the défense requires.
The more diffieult question in the case is as to infringement. The
défendant is manufacturing ostensibly under the letters patent granted
to Henry Weinhagen October 19, 1880, and reissued January 16,
1883. The claim of the original was for a thermometer tube having
a flat bore and a flat back, and sides forming acute angles with said
back, and converging towards and joining each other at an acutô
angle opposite the flat bore, so as to form a prismatic front. The
theory of the invention is that the magnifying power is due to the
refracting action of the prismatic sides in combination with the flat-
tened bore in a plane at right angles to the Une of view. Indeed, it
SHAW BBLIEF VALVE CO. V. CITY OW NEW BBDrOBD. 753
is insîsted by the experts for the défendants that the substantial and
practical magnifying effect found in the Peroni thermometer is not
due to the lens action ot the cylindrical tube, whether the bore of the
tube be placed in its axis or beyond that axis, or beyond the axis of
curvature of any part of the tube, but is due to the refracting action
of the sides; and an attaok is made upon the complainant's patent
as containing a false and deceptive spécification in tfais regard. A
careful considération of the évidence taken, in connection with the
expérimental tests made upon the hearing, bas led to the conclusion
that the theory of the défendants' experts is not correct. In bis orig-
inal spécification, Weinhagen states "that bis tabe is made as sharp
as possible at its junction, and forms a prismatic portion or front,"
and "that the prismatic sides join eaeh other at an acute angle op-
posite the bore." If the défendants' thermometer tubes were in fact
of this description they would not infringe the complainant's patent.
The magnifying curve, whioh is the oonvex surface of Peroni's, would be
absent, and the two inventions would not invoive the same principle.
But it is believed that Weinhagen found it neoessary to adopt the
principle of Peroni's invention. In bis reissue the feature of the
acute angle in front of the bore, formed by making the tube as sharp
as possible at its junction, is modified by a description of the mode
of making the tube whieh results in the angles remaining "slightly
rounded." This configuration of the angle appears quite clearly in
the photographie représentations of a section of bis tubes. Thèse
présent a "slightly rounded" angle or lens surface, whioh is substan-
tially the same as is shovm in figure 2 of the drawings of complain-
ant's patent. The bore is located beyond the center of the magni-
fying curve. It is therefore held that the défendants infringe.
A deeree is ordered for the complainant.
Bhaw JReiiIep Valve Co. v. City of New Bedfobd
(Œrcuit Court, D. Massachusetts. March ]2, 1884.'
Patents Heu> Pebsonai, Ppopbrty.
A patent-right is Personal property, and goes to the exécuter. Section 48R4
of the Kevised Statutes, providing for the grant of a patent to the patentée,
" his heirs and assigns," does not change the law by whioh exeoutors and ad-
ministrators take the title to a patent on the death of the owner; as appears
by other sections of the same chapter.
In Equity.
CJiaa. H. Drew, for complainant.
C. J. Hunt, for défendant.
LowBLL, J. This bill is bronght upon two patenta, and the de-
murrer of the city of New Bedford taises se veral objections, ail but
V.19,no.l0— 48
754 fSOEBAL.BEPOBIEB.
one of which, it is agreed, can be, and may be, removed by amend-
ment. A question which cannot be thus disposed of, aud whioh haa
been argued with earnestness, and is pending in at least one other
circuit, is whather the complainant's title to an undivided part of one
of the patents is suf&eient. It seems that this title cornes through
an administrator of the patentée ; and the défendant contends that
the grant of a patent, by Eev. St. § 4884, is to the patentée, "his
heirs and assigns," and that by force of thèse words a patent descends
directly to the heirs, without the intervention of the administrator.
This is a new and eomewhat surprising proposition. It has never
been doubted before that a patent is personal property, which foliows
the ordinary course, and goes to the exeeutor or administrator in
trust for the next of kin. The cases take this for granted, and when
any question has been mooted, it has had référence to the due quali-
fication of the exeeutor or administrator, or something of that sort,
as in Rubber Go, v. Goodyear,Q Wall. 788. The text-writers treat of
patent-rights as personal property which goes to the exeeutor. Nor-
man, Pat. 145 ; Schouler,' Ex'rs, § 200. The défendant argues that the
statute of 1870 changed -the rulè, by.omitting the worda "executors
and administrators" from what is-novr section 4884, intending to
make a sort of real estate of this incorporeal right. He has not ar-
gued that the widow can be endowéd of it, but I suppose that will
foilow. A grant of personal property to a man and his heirs, with-
out further qualification, means to him and his next of kin, accordîng
to the statute of distributions. 4 Kentj Comm, (5th Ed.) 53T, note d,
and cases ; Vaux v. Henderson, 1 Jacob & W. 388«; Gittings v. Mc-
Dermott, 2 Mylne & K. 69 ; Re Newton' a Trusts, L. E. 4 Eq! 171 ; Re
QrylVs Trusts, L. E. 6 Eq. 589; Re Steevena' Trusts, L. E, 15 Bq.
110; Re Thompson' s Trusts, 9 Ch. Div. 607; Houghton v. Kendall, 7
Allen, 72; Sweet v. Dutton, 109 Mass. 589. Such a grant is simply
a limitation of an estate of inheritance, having no référence one way
or the other to the administrator. He takes in trust for the next of
kin, because the estate is more than a life estate.
The acts of congreâS hâve not been drawn with teehnical accuracy
in this particular. Down to 1836 the word "executors" was omitted,
and patents were issued to the patentée, his "heirs, administrators,
or assigns," (St. April 10, 1790, § 1; 1 St. 110; St. Feb. 21, 1793,
§ 1; 1 St. § ^21 ;) but no one ever doubted that executors would take
the title. In 1836 executors were added, and the grant was to the
patentée, his "heirs, administrators, executors, or assigns." St. July
4, 1836, § 5; 5 St. 119. In 1870, administrators aud executors were
left ont. This omission is not significant. The iaw was not changed
by it; the proof of which is that executors and administrators are
mentioned as taking title in ûve of the sections Of the Ee.vised Stat-
utes which re-enaot the Iaw of 1870. Thua, by section 4896, if an in-
ve'ntor dies befOre a patent is granted, the right to obtajn it devolves
on hia exeeutor or administratory in. trust for his; heirs at Iaw, (that
BHAW BELIBF VALTE CO. ». CITT Qf NEW BBDrOBD. 7§Ç
is, his next of kin, as we bave seen,) or to bis devisees, as tbe case
may be, whicb, technically, should be legatees. By section 4898
eyery patent sball be assignable, and tbe patentée and bis assigns,
"or légal représentatives," may, in like mannfer, grant, etc. Now,
légal représentatives nsually means executors or administrators,
(Price V. Strange, 6 Madd. l&Q; Be Gryll's Tr^sté,h.% 6 Eq. 589;)
and it bas that meaning in this statute; for by section 4896, above
mentioned, by whicb the executors or administrators are authorized
to apply for a patent, it is provided that when the application is
made "by sucb légal représentatives," the oath sball be varied to
meet their situation. By section 4900 it is made tbe duty of ail
patentées and their assigns, and "légal représentatives," to do cer-
tain aets by way of informing tbe public that the article they make
or sell is patented. By section 4922, when a patentée bas innocently
daimed more than bis invention, be, bis executors, administrators,
and assigns may maintain a suit on tbe patent, notwithstanding the
mistake. By section 4916, if a patentée is dead, without having as-
signed the patent, and there is occasion for a reissue, it sball be made
to bis executors or administrators. From a comparison of thèse sec-
tions it is made clear that a patent-right, like any other personal
property, is understood by congress to vest in the executors and ad-
ministrators of the patentée, if be bas died without having assigned
it. It is really of no conséquence whetber they hold in trust for heirs
or for next of kin, so long as they take the légal title.
It was argned that congress may bave intended to express by the
word "heirs" that a patent should not beassets for tbe paymerit of
debtsj But they bave not only not exempted patent-rigbts from being
taken for the dèbts of the owners, but bave required that they should
beso. taken by assignées in bankruptcy, (Eev. St. § 6046;) and tbe
suprême court bave failed to discover such an iûtent, for they hold
that, by due process in chancery, a patent-right may beapplied to such
payment. Ager v. Murrayi 105 tJ. S. 126. Indéèd, section 4898 is
décisive of this question, for it expressly provides that the légal rep-
résentatives of tbe patentée may assign. Bven if this were a mère
statutory power, the authority would be sufficient; but it is, of course,
a récognition of a fact, and not a new i^rant of power.
Pemurrer overruled.
756 FEDERAL EEPOETEB.
f'BYEB, Jr., V. Maurer.
[ÇHrcuit Oûurt, 8. jD. New York. March 19, 1884.)
Patents — Timng — Pebvioos Btatb of thb Art.
Reissue No. 5,174, for a seotional arch of hoUow tiles having plane joints, to
be used underneath tlie floors of flre-proof buildings, is void for lack of patenta-
ble novelty. Ail of the f eatures except the plane vousmr» were incorporated in
previous foreign patents, and the use of plane vouasoirs for analogous purposes
was net new.
In Equity.
Geo. W. Van Siclen, for complainant.
Gen. John A. Poster, for défendant.
Wallacb, J. The invention described in the complainant's patent
(reissue No. 5,174 granted December 3, 1872, to Balthazar Kreischer,
original granted March 21, 1871) relates to an improvement in tiling
used in fire-proof buildings under the floors. The spécification de-
scribes it as consisting in a hoUow sectional tile combined with the
girders of the building in such a manner that the tiling spans the
space between opposite girders, the end sections being supported upon
or against the girders, and the middle section forming a key to bmd
the sections together, the whole having a fiât under-surface. Con-
sidered with the aid of the drawings, the invention may be more in-
telligently understood as being an arch composed of sections of hol-
low tiles, and supported by girders against which it abuts at either
side, the intrados having no curve, and the sections being voussoirs
radiating to a center, and the points of the section being plane; and,
as an incidental arrangement for supporting the arch, the end sec-
tions are provided with a reoess, where they rest upon the flanges of
girders for receiving and interlocking with the flanges. The arch
may be so formed on the upper sida as to furnish air spaces for
ventilation under the flooring ; and it may also be provided with re-
cesses in the sections at the joints, on the ùpper side of the arch, into
which the sleepers may be inserted; but neither of thèse features is
essential» and neither enters into the claims as one of their consti-
tuents. The claims are as follows;,
(1) In combination with supporting beama or girders, a sectional hoUow
tile, whose end sections abut against opposite beama or girders, and whose
middle section forma a key, and so constructed that the under side of the tile
forms a flat surface, substantially as described. (2) A hoUow tile made in
sections, one of which forms a key for the end sections, which are provided
with recesses to catch over the flanges of the girders, substantially as de-
scribed.
The several publications relied on by the défendant as anticipating
the patent are ineffectual for this purpose, because none of them de-
scribe an arch of hoUow tiles in which the several sections hâve plane
joints, or are supported merely by the wedging power of the plane
voussoirs. Thèse publications, however, contribute important in-
FBYEB V. UAUBEB. 757
formation concerning the prior state of the art, and materially assist
the argument for the défendant that there was no invention in what
Kreischer did. In considering them the drawings are of great as-
sistance, as they illustrate clearly what the descriptive words alone
would fail to point out adequately. Thèse publications show that it
was not new to employ an aroh of hollow tiles made in sections, sup-
ported by girders in either sida between the stories of fire-proof build-
ings. The French letters patent to Vincent Garcin, of Ootober 11,
1867, and amendment of October 9, 1868, show such an arch having
a flat under surface or intrados. The vomsoira are, however, inter-
locked by indented joints, so that the sections support each other by
this means. The key-stone has also an indented joint. The French
letters patent to Eoux Frères, of March 24, 1868, show the same
thing. They also show a recess in the end sections of the arch where
they rest upon the flanges of girders for receiving theflanges and air
spaces for ventilation, on the upper side of the arch. Every sub-
stautial feature of the complainant's patent is hère shown except the
plane joints of the arch, the sections in the Eoux Frères patent hav-
ing indented joints, but indented differently from Garcin's construc-
tion. Other publications show very similar arches whieh are sup-
ported by roda or bolts instead of interlocking joints.
It is common knowledge that the flat arch, in which the joints are
plane and the intrados has no ourve, is old. It was generally em-
ployed in door-ways, fire-places, and Windows. If Kreischer had been
the first to introduce the plane joints of this arch into tiling for span-
ning the space between the girders of buildings, the case would ré-
solve itself into the single question of fact, whether the substitution
of the plane joints for the indented joints of Garcin and Eoux Frères
was such an obvious thing as not to involve invention. But the En-
glish provisioûal spécification of George Davis, of Jlily 10, 1868, for
fiUing pièces for iron floors and ceilings, describes a fiUing of hollow
hricks, in which the pièces which abut against the joists hâve one
side perpendicular and the other oblique, the intermediate pièces
hâve parallel sloping sides, and the center fiUirig pièce is of a taper-
ing or wedge form, "so that when the fiUing pièces are fittèd together
between the iron beams or joists they form a self-sustaming flat arch,
of which the center pièce is the key." It thus appears that Kreischer
was not the first to employ the plane joints in an arch of tiling for
spanning the space between the girders of buildings. Such joints
having been used for this purpose, it was: not invention to employ
them for the same purpose in the arches of Garcin and Eoux Frères.
This was merely improving a fenown.struoturé by introdacing a knowû
équivalent for one of its features. ■
The bili is dismissed
758 fboebal bepobteb.
Chicago Mcsio Co. v. J. W. Bdtleb Papes Ço.
{Oireuit Cmrt, N. D. Illinois.^ February 24, 1884.)
PLEADIKS — iNPRISrCtBMBNT OP COPYRIGHT— NbCESSABT ALLEGATIONS. .
In a suit to recover for the infringement of a copyright, tlie déclaration must
set out in détail a substantial compllance with tlie variuus requirements of tbe
copyright laws.
Demurrer to Amended Déclaration.
Frank J. Bennet, for plaintiff.
McCoy, Pope dt McCoy, for défendant.
BiiODGETT, J. This is a demurrer to the amended déclaration, in
which there are five counts. It is a suit for the alleged infringement
of a copyright. The allégation in each of thèse counts is that the
plaintif! was proprietor of a certain musical composition entitled "I
will meet her when the sun goes down," words and music by William
Welch; that on October 39, 1882, plaintiff eaused the same to be re-
corded in the office of the librarian of congress, and afterwards pub-
lished divers copy of this musical composition, with the words "Copy-
righted by the Chicago Musio Company" printed on each copy; and
that the défendant, since the reoording of the said work in the office of
the librarian of Congress, bas infringed upon the plaintiff's exclusive
right 80 secured to him by virtue of the copyright laws of the United
States.
The question made by the demurrer is whether the plaintiff has
sufficiently set out his title as the holder and owner of this copyright
by this averment. The law authorizes the owner, author, or propri-
etor of a book, musical composition, etc, to copyright the same, and
it is to be copyrighted by delivering at the office of the librarian of
congress, or by depositing in the mail addressed to said librarian,
before publication, a printed copy of the title of such book or musical
composition ; and also, within 10 day s from the publication of such book
or musical composition, the author or owner of the copyright must
deliver at the office of the librarian of congress, or deposit in the mail
addressed to such librarian, two copies of such book or composition.
Thèse are the steps which must be taken to seoure the copyright in a
musical composition like this. This exclusive right to authors is a
monopoly for the term of the copyright, and in order to secure it
there must be a substantial compliance with the terms of the statute.
It is not like a patent in this: that an applicant for a patent applies
to the commissioner of patents, aetting ont his claim, and a qtmai
judicial proceeding is instituted before the patent-office. An exami-
nation is made as to the novelty and usefulness of the invention^ and
if the allégations of novelty and usefulness are adjudged to be sus-
tained, the patent-office issues a patent, which is prima facie évidence
of both the novelty and usefulness of the device, and that the patentée
CHICAGO MUSIÛ 00. V. J. W. BUTLER PAPBE 00. 759/
18 the first inventer thereof. Bat the librarian of congress possesses
no power in the premises; he simply receives the title when it is de-
livered or forwarded to him, and makes a record of it in bis office,
and receives the two copies of the publication -when published, and
which must be forwarded to him within 10 days after the publication
is made, and makes a record of the reoeipt of the copies. The libra-,
rian issues no certificate, or anything in thé nature^ of a patent ; he
simply makes a record, and whenever called upon bas to make a
certificate of whatever the records of his office show towards a compli-
ance with the terms of the law. The rights of the party holding a copy-
right, therefore, dépend wholly on whether he has in fact complied with.
the terms of the law or not, and not upon the fact that he has ob-
tained a certificate from the libra.rian. In this case the five counts
in the déclaration are barren of any averment of compliance with the
terms of the law. The plaintiff allèges he was proprietor of this
musical composition^ but he does not state how he became proprietor;
he does not state except inf erentially, who was the author of the com-
position in question. He says that he was proprietor of a musical
composition known by a certain title, the words and music by William
Welch, but how he acquired the proprietorship from .William Welch,
or whether William Welch was the author, is only, as I said, infer-
entially to be obtained from any statement in the déclaration. No-
body but the author, or some person who has acquired thé author 's
right to a copyright, can bbtain a copyright under the law; and I
think that where a person atteinpts to copyright as proprietor, and
avers that he bas copyrighted as proprietor, he must show how he
became proprietor, because no intendment will be made infavor of
au exclusive monopoly of this character. The plaintiff must show
that he has taken the steps required by law. Hère thereis no state-
ment in the first place, as I bave already said, that he ever was eitheï
the author or proprietor by virtue Of having acquired the rights of the
author; there is no averment that he ever filed with the librarian of
çongress, before publicatipn, the title of the work, and that within 10
days after publication he delivered or forwarded to the librarian of
congress the two copies required by the law which make his copyright
complète.
The demurrerto this amended déclaration must therefore be sus-
tained.
760 fedebal befobteb.
The Maeina.
' {District Court, D. 2feu> Jersey. March 8, 1884.;
1. CoNDiTiONAii Sale— Attachmknt.
An engine was furnished to a ateam-lîffhter under awritten contract of sale,
bywhich it was to remain the property of the vendor tillpaid for. The engine
was attached by screws to the vessel. The contract was made in New York,
but the lighter afterwards went into New Jersey, where an attempt was made
by the créditera of tlie vessel to attach the engme. HelA, that the engine re-
mained the property of the vendor, and could not be attached.
2. Samb— Not a OHATTEii Mobtgaob.
Anagreement bywhich goods delivered to the vendee are to remain the prop-
erty of the vendor till paid for is a conditional sale, and not a chattel mortgage,
within the meaning of the registration acts. In tlie absense of fraud the vend-
or's title will prevail over an attachment.
3. CONFLICT OF LAWS — LBX SITUS.
Such is, at ail events, the law of New Jersey, [Oole v. Berry, 13 Vroom, 308 ;)
and property brought into a state becomes subject to its law and polioy, which
will govern the construction of contracts made elsewhere with regard to the
transfer and disposition of the property.
In Admiralty.
John Grifin, Jr., (with whom was Bedle, Muirheid é McGee,) for
libelants.
Hyland é Zabriskie, for petitioner.
Nixon, J. On the twenty-ninth of July, 1880, the Lidgerwood
Manufacturing Company furnished to the steam-lighter Marina a
double hoisting engine, at the request of her owner, J. A. Cottingham,
upon the terms specified in a paper, of which the f oUowing is a copy :
"New York, July 29, 1880.
"Lidgerwood Man, Oo. Machine WarM-ooms, No. 96 Liberty street, New
York— GmsTs: Please furnish and ship to steam-lighter Marina, to remain
as your property until fully paid for by me in cash as below stated, the fol-
lowing: One double hoisting engine, same as provided me for steam-lighter
Joseph Hall, at $450. To be paid for ag foUows: Fifty dollars in equal
monthly payments. And unless so paid for, you are authorized to enter and
retake the same into your possession, wheresoever she may be found. ïhe
same to be held fully insured by me agamst loss or damage by flre, and to be
kept in good order. J. A. Cottingham, 11 Dey St., New York."
The engine was placed on board the steam-lighter, attached to the
deck by screws, and used since that date in her ordinary business of
lighterage. In this condition of affairs a number of libels in rem were
filed, and monitions issued out of this court against the said steamer,
her engines, and tackle, in favor of creditors claiming liens for sup-
plies, repairs, labor, etc. The marshal of the district, by virtue of
said writs, seized the vessel, her engines, tackle, and apparel, and, by
order of the court, bas advertised her for sale for the satisfaction of
alleged liens amounting to about $7,000. The Lidgerwood Manu-
facturing Company bas demanded of the marshal the surrender of the
possession of the hoisting engine, claiming the same as its property.
THE HARINA. 761
This has been foUowed by a pétition to tbe court, and a motion that
the marshal be ordered to deliver up to said company the custody of
the same before any sale of the vessel and her taokle takes place.
There seems to be no dispute about the facts, and the proctors of the
respective parties bave stipulated, in writing, as follows :
It is admitted that the hoisting engine in question waa delivered to Mr.
James A. Cottingham by the Lid^erwood Manufacturing Company, under
and in accordance with the terms of a paper, a copy of which ia hereto an-
nexed, and marked Exhihit A; that $250 has been paid by Cottingham on
account of said engine, and that he has made default in the payment of the
balance of the sum specifled in said paper, acçording to the terms thereof ,
and that he had made such default prier tothe incurring of the claimsherein;
that the libelants herein did not know at the time they perfonned the repairs
add labor, and furnished the materials and supplies in question, that the said
hoisting engine was claimed to be owned by any company or person, other
than the owner or owners^f the steam lighter Marina, and that they at such
times never inquired, and said Cottingham never told them, who claimed to
own said engine; that during ail the times referred to in said libels said Cot-
tingham was a résident of Jersey City, New Jersey; that none of the labor,
supplies, or materials in question were performed upon or supplied to said
hoisting engine itself ; that while said repairs were being made, or a portion
thereof, the said engine, which prior thereto had been atiached to said vessel,
was removed, and afterwards replaced thereon and reattached thereto; that
the rent usually charged by the Lidgerwood Manufacturing Company for the
use of an engine such as this is fifty dollars a month, in a case where they
rent one; that said engine is attached to the vessel by | or g inch wood screws
passing tbrough the deck and into the deck-beams of the vessel about four
inches.
The paper referred to in the foregoing admission of facts, as marked
Exhibit A, is the above-quoted writing addressed to the Lidgerwood
Manufacturing Company by Cottingham. The question presented is
whether the contract shownin the writing is a conditional sale, which
did not pass th^ ownership until the condition was performed, or whether
the title passed by the contract and what was reserved was a mère lien
or security for the payment of the priée of the engine. If the for-
mer, then the engine remains the property of the vendor, and is not
subject to seizure by ereditors claiming leins against the vessel. If
the latter, the réservation is void as contrary to the provisions of the
chattel-mortgage act of the state, requiring a record of ail chattel-
mortgages, and honafde ereditors or purchasers without notice may
hold it discharged of the claim of the manufacturing company. The
question is not without difficulty, which arises chiefly from the con-
flioting views of the courts as to whether the instruments of writing
evidencing the sales of chattels are within the registration laws of
the state. This much, however, I think has been settled by the su-
prême court, that the fédéral tribunals will foUow the décisions of
the state courts in determining whether or not the registration act
of the particular state includes a conditional sale. Hart v. Barney
dt Smith Manuf'g. Co. 7 Fed. Ebp. 552.
Is the instrument of writing under which the transfer of the en-
762 FEDERAL BEPOBTEE.
gine tooli place a mère conditional sale of the property, liable to bo.
defeated if the purchaser fails to pay the purchase money, or is it "a
conveyance intended to operate as a mortgage," which is void as to
creditors because not recorded ? The contraot between the company
and the owner of the vessel was executed in New York, and the proc-
tors of the petitioner invoke the application of the usual rule that it
must be interpreted, and its vàlidity determined by the la'rt's and ju-
dicial décisions of that state. It is undoubtedly the settled doctrine
of most, if not âll, civilized countries that personal property has no
locality, and that it is subject to the law which governs the person of
the owner, both \?ith tespect to its disposition and transmission.
Dut of this prin'iiple bas grown the rule in the construction of con-
tracta that, where they relate to raovables, they are construed accord-
ing to the law of the place where they are made, and not according
to the local law where they are attempted to.be enforced. But this
rule is, not without its exceptions. It is founded in comity, and must
yield when the législation of a state in which the property happeiïs
to be has preseribed a différent rule. Story, Confl. Laws, § 390.
Tbus thé suprême court in a séries of cases (Green v. Van Buskirk, 5
Wall. 30T; S. G. 7. Wall. 139; and Hervey v. Locomotive Works, 98
U. S. 671) bave held that every state bas the right to régula te the
transfej: of property within its limits, and that whoever sends property
into it impliedly submits to the régulations concerning its transfer
iii force there, although a différent rule of transfer prevails in the ju-
risdiction where he résides, or where the contract was entered into,
' The présent case cornes within the exception to the gênerai rule;
and as the controversy has arisen in New Jersey, I must look to tb©
statute and the décisions of the courts of this state, rather than New
York, for the construction of the contract. The statute of New Jer-
sey (Eev. 709, § 39) enacts that every mortgage or conveyance in-
tending to operate as a mortgage of goods and ehattels, whicb shall
not be accompanied by an immédiate delivery, and followed by an
actualand continued change of possession of the things mortgaged,
shall be absolutely void as against the creditors of the mortgagor,
and as against subséquent purchasers and mortgagees in good faith,
unless the mortgage or à true copy thereof be filed in the clerk's of-
fice of the county, etc. Suppléments to the same hâve been approved
on March 19, 1878, (P. L. 139,) on April 5, 1878, (P. L. 347,) and
OD March 12, 1880, (JP. L. 266,) none of which affect the original act,
so far as any questions arise in the présent case, except the last re-
eited supplément, which requires a record of the mortgage in the
place of filing. This statute being in force, the suprême court of New
Jersey, in the case of GoU y.Berry, 13 Vroom, 308, bad occasion to
construe an instrument of writing substantially similar to the one
under considération. Cole, the plaintiff, being the owner of a Do-
mestic sewing-machine, sold the same to one Gustave Wetzel, and
-gave him possession. While thus possessed, Berry, the défendant.
THE MABtNA. 763
one of the constables of the couaity of Hunterdon, seized and sold it
by virtue of a writ of attachment issued against 6aid Wetzel. Cole
brougUt an action of trespass against the constable, and claimed the
ownership of the machine under the following •written agreement, en-
tered into by Wetzel at the time of the purehase :
" AKNANDAIiE, Juns' 26, 1876.
"Whereas, the subscriber bas this day purchased of Josiah Cole one Do-
mestic sewing-machine for the sum of flfty-flve dollars, for whioh .1 hâve
given fifteen dollars in cash and my note for forty dollars, payable in installr
ments of five dollars a month, and I bave allowed him to take the machine
in his possession. Now, it is agreed that the saJd machine is to be and re-
main the property of the said Cole, and be subject to his control, until the same
is actuaDy paid for in cash. Gustave Wetzel. "
The learned judge (Depue) who spoke for the -whole court, in the
course of an abla opinion, stated the law in New Jersey in regard to
the conditional sale of chattels to be as follows ;
"(1) Delivery of possession under a conditional contract of sale, whieh
stipulâtes that the goods shall remain the property of the vendor until the
contract priée be paid, wiU not pass title to the vendee until the condition be
performed. (2) A vendor who delivers the possession of a chattel under an
executory contract of sale, on condition that the property shall not pass until
payraent of the contract priée, œay forfeit his property by conduct which the
law regards as fraudulent. But where the case présents no other features
than that the vendor has entered into a contract of sale on crédit, and bas
delivered the goods to the vendee upon an agreement that they shall remain
the property of the vendor until payment of the purehase money be made, the
transaction is not fraudulent per se, and the property in the goods will re-
main in the vendor until payment be made, without being subject to exécu-
tion at the suit of creditors of the vendee. "
This would seem to be décisive in the présent case, and the more
so as the décision is in accord with the best elementary writers on
the subject.
Thus Kent in his Commentaries, vol. 2, p. 497, says:
"When there is a condition précèdent attached to a contract of sale and
delivery, the property does not vest in the vendee on delivery, until he per-
forms the condition, or the seller waives it; and the right continues in the
vendor, even against the creditors of the vendee "
Story, Sales, § 313, says :
"A sale and delivery of goods on condition that the property is not to vest
until the purehase money is paid or secured, do not pass the title to the
vendee until theconditiou is performed; and the vendor.in case the condition
is not fulflUed, has a right to repossess himself of the goods, both against
the vendee and against his creditors ; and, also, if guilty of no lâches, the
vendee may reclaim the goôds so aold and delivered, even from one who has
purchased them from his vendee in good faith and without notice."
Benjamin, in his work on Sales, in the chapter on the "Sale of
Spécifie Chattels Conditionally," (book 2, c. 3, § -320,) adds to Judge
Blackbuen's two rules, a third rule, as follows :
"Where the buyer is, by the contract, bound to do anything as a condi-
tion, either précèdent or concurrent, on which the passing of the property de-
764 FEDSBAL BBFOBTEB.
pends, the property will not pass until the condition be fulfllled, even tliough
the goods may bave been actually delivered into the possession o£ the buyer. "
To the same effect, also, is the opinion of Mr. Justice Washington,
in this circuit, in the case of Copland v. Bosquet, 4 Wash. C. C. 5S8,
and of Judge Shipman, in the second circuit, in the case of Buuendahl
T. Horr, 1 Blatchf. 548.
It may seem at the ârst glance that the foregoing view is in con-
âict with the circuit court of Kentucky in the case of Hart v, Barney
é Smith Manuf'g Co. 1 Fbd, Bep, 643, and with the suprême court
of the United States in the cases of Hervey v. Rhode Island Loco-
motive Works, 93 U. S. 664, and Heryford v. Davis, 102 U. S. 235.
It will be found, however, on a more cai*eful examination that thèse
décisions turned upon the statutes and the adjudications of the state
courts of the respective states, in regard to their registration laws.
In the case first stated, the learned judge, after quoting the Kentucky
act, said that he must follow the Kentucky courts, and that their
later décisions were ail to the effect thàt agreements that are usually
called conditional sales were within the law, and therefore void without
registration. In Hervey v. Rhode Island Locomotive Works, supra, the
parties to the contract of saie lived respectively in New York and
Ehode Island, and it was insisted that it must be interpreted by the
laws of the state where the contract was made. But the court held
that the property, the ownership of which was in dispute, was in
Illinois, and that the courts of that state should be foUowed in deter-
mining the controversy, and that thèse courts had uniformly decided
that the policy of the law in Illinois would not permit the owner of
Personal chattels to sell them, either absolutely or conditionally, and
still continue in the possession of them. In Heryford v. Davis, supra,
the court admitted, at least by implication, that the chattel-mortgage
act of Missouri allowed conditional sales of personal property, and
conceded that if the contract under considération was found to be of
that eharacter the court must give it effect. Mr. Justice Strong,
speaking for a majority of the court, said : "If the contract was only a
conditional sale, which did not pass the ownership until the condition
should be performed, the property was not subject to levy and sale
under exécution at the suit of the défendant against the company."
But, on examining the terms of the agreement, the court found that it
lacked the necessary éléments of a conditional sale, but, on the other
hand, contained every élément of an absolute sale and transmission
of ownership. Promissory notes were given for the stipulated price
of certain railway cars sold, and thèse notes were to be paid to the
vendor in any contingency. If not paid, the vendor reserved the
right to take the property into its own possession, and sell it, but was
bound, after retaining the sum remaining due upon the notes, to pay
the surplus, if any, to the vendee. In view of thèse provisions, the
court determined (Judge Beadlby dissenting) that it was the intention
of the parties, manifested by the agreement, that the ownership of the
rHB JAY QOULD. 765
cars should pass at once to the vendee, in considération of its be-
coming debtor for the priée, and thafc, notwithstanding the efforts to
cover up the real nature of the contraot, its substance was the hypoth-
ecation of the cars to secure a debt due the vendor for the priée of a
sale.
It only remains to inquire whether the case exhibits any conduct
on the part of the vendor which the law regards as fraudulent. If so,
I fail to perceive it. If any exist it was the duty of the petitioner to
show it. The engine was delivered over to the lighter, to be used,
doubtless, for loading and unloading cargoes; but it was to continue
the property of the vendor until fully paid for in cash "in equal
monthly payments of fif ty dollars. " That ownership was not f orf eited
because the vendee attached the engine to the deck of the vessel by
wood screws, in order to its more convenient or more efficient use,
whether such attachment was made with the knowledge and consent
of the vendor or not. He never performed any aet, or made any
statement, from which the inference could be drawn that he meant to
mislead the public, or individuals, in regard to the ownership.
Let an order be entered directing the marshal, in makin^ sale of
the vessel, etc., to except the hoisting engine from the property sold.
It is not a case where costs should be allowed.
Thb Jat Gould.
{IHstriet Court, E. D. Miehigan. Maroh 10, 1884.)
1. Collision— Propelleb and Tug-Signalb.
A propeller and tng were approaching each other under signais of one whistle
each, and in such relative positions that the propeller was exhibiting her red
light to the tug. When about 600 feet apart, the propeller starboarded so far
as to show her green light and shut in the red. The tug immediately blew
two whistles, starboarded, and continued at full speed, and was struclî by the
propeller at a right aogle and sunk. Held, that both vessels were in fault — the
propeller for starboarding too far, and the tug for not stopping her engine.
2. Samb — Approaching Vessel — Course.
A vessel approaching another is bound to pursue a consistent and steady
course, and not to embarrass or confuse the other by unnecessary changes of
her wheel.
3. Bame — Steamer— Fault.
Wherever by the fault of another vessel a steamer îs placed in danger of col-
lision, sho is bound to stop or reverse, and will not be exoused for a departure
from the statutory rule, except upon clear proof that such departure was ren-
dered necessary by the circumstances of the case, or that it could not hâve con-
tributed to the collision.
In Admiralty.
This was a libel for a collision between the tug Martin Swain and
the propeUer Jay Gould, which took place about 3 o'clock in the mom-
ing of September 27, 1881, in the Détroit river, between the head of Bois
768 TEDERAL BBPOBTEa.
Blanc island and tîie main Canadian shore. At the head of the island
are two range lights, by which vessels coming down the channel from
the Lime-kiln crossing, so called, are accustomed to take their course
until they turn down the channel between the ialand and the main land.
Nearly opposite thèse lights, and about 250 feet from the main land
is a red can-buoy, marking the easterly limit of the channel. The nav-
igable channel, whioh at this point ia about 1,000 feet wide, lies between
the range lights and this buoy, and hère the collision occurred. At this
point the channel deflects about two points from a straight course,
80 that a steamer in coming down the river will exhibit her red light
to an ascending steamer, while the latter exhibits her green light to
the former, until after she passes the buoy. On the night in ques-
tion the tug was proceeding up the river with the barges Marengo and
Maria Martin in tow, and when opposite Amhurstburgh, made the red
light of the Jay Gould descending the river. She thereupon gave a
single blast of her whistle, to which response was made by a sin-
gle blast from the propeller, and both ported a little and proceeded,
with the undeïstanding that eaeh was to pass to the right, and upon
the port side of the other. When they had approached each other
within about 600 feet, the propeller 's wheel was starboarded to go
down the river, and she swung so far to port as to exhibit her green
light to the tug, whioh immediately blew two whistles and put her
helm hard a-starboard. The tug swung to port under this order about
a point, when the propeller, whose wheel had been put hard a-port,
struck her amidships on the starboard side, nearly at a right angle.
In two or three minutes the tug stranded or sunk at the head of the
island.
Upon the argument the court was assisted by Commander Cooke,
of the navy, and Gapt. Hackett, of the lake marine, sitting as nau-
tieal assessors.
Moore é Ganfield, for libelant.
H. C. Wiener, for claimant.
Brown, J. Much testimony was întroduced upon either side, tend-
ing, upon the part of the libelant, to prove that the collision took place
on the easterly side of the channel, and within two or three hundred
feet of the red can-buoy; and, on the part of the claimant, to show
that it must hâve occurred within a short distance of the head of the
island, and upon the extrême westerly side of the channel. As usual,
each crew swears almost as one witness to its own theory of the case,
and in direct conflict to the other, each endeavoring to get his own ves-
sel, as far as possible, toward its own side of the channel. We think,
under thèse circumstances, it is much easier to extract the truth from
the admitted facts and probabilitiea of the case than from any attempt
to reconcile thèse contradictions or détermine which of the two crews
Î8 more worthy of belief. Assuming that a tow bound up, with a
light southerly wind, would naturally keep the center of the channel
between Bois Blanc island and Amhurstburgh, we find nothing to in-
• THE JAT SOULD^ l 767 '
dicàte ihat tWs was noi the conrsé' actiially piirauéd, except the fadt
that whenopposite Amhurstburgh the tug met the tug Prindiville com-
ing down with a tow, and passed her to the right. This wonld naturally
incline the Swain somewhat to the starboard side of the channel. In
support of his theory the leamed advocate for the propeller insista
that, inasmuch as the tug grounded and sunk at the head of ihe is-
land, and a little to the west of the ranges, and Tvas keeled over on
her port side, she must hâve received the blow very near there, and
was propelled by the immense weight of the propeller to the spot
where she was sunk, and was driven over on to her port side. There
is much plausibility in this suggestion, as tha'wound in the side of
the tug was a very deep one, and it is impossible that she could hâve
been kept in motion long after the propeller's bow was withdrawn
from her side. Upon the other hand, the engineer and some of the
tng's crew swear that the coal bunkers, whieh were against the spot
where the propeller struck the tug, prevented the water rushing in
with great rapidity, and allowed the engine to be kept in motion long
enough to carry the tug some two or three lengthS until she grounded
at the head of the island. We think this was not impossible. The
difficulty with the propeller's théory is "that it compels us to believe
■that the tug executed the whoUy inexplicable and improbable maneu*
ver of stàrboarding and crossing the channel to the wrong side after
■she had signaled the propeller that she would port and keep to the
right. The master of the tug was.bom at AmhUrstburgh; had sailed
for 20 years ; ""knewevery foot of the river at that point;; and we would
•not believe him guilty of so gross an errorwithout the most convinc-
ing testimony of the fact. Upon the whole, we think the collision
occurred very near the center of the channel.
We do not, however, deem this question of vital iniportance, as we
are ail agreedthat the propeller was guilty pf fault in exhibiting her
green light to the tug, after signais of one whistlehàd been exchanged
between them. The propeller wascomîng down the channel, exhibitr
ing her red light to the tug. Good seamanship and her signais both
required that she should pursue a consistent coursei and exhibit her
red light, and her red light only, until she had gotten abreast the tug.
Assuming that she must leaye the ranges and starboard a point or
two to take her course down the river, she had no right to swing
80 far to port as to 'exhibit a green light to the ascending tug. It
was a movement which could not f ail ' tô embarraés âhd confuse the
master of thé Swain, and was, in our opinion, the primary cause
of the collision which ensued. Even îî the tug was on the westèrly
side of the channel, as the propeller insista, and thé propeller star-
boarded her wheel to prevent runnirig upon the ÎBland, she was
Btill in- the wrong, as she should bave stopped long enough to per-
mit the tug to pass her, insiead of starboarding so faras to ex-
hibit her green light. We hâve no doubt that she swung further to
port undèr this order to starboard than her master intfended, and thàt
V68 FSDEBAIi BSFOBTEB.
the accident was due to the bad steering qualities of the propeller.
The admissions of her wheelsman, made at Buffalo, that she first swung
too far to port, and then toc far to starboard, after she recovered her-
self, are strongly corroborative of this theory. Knowing, as her ofS-
cers were bound to know, this defect in the propeller, we think it was
clearly their duty to hâve provided against it, and kept so far away
from the tug as to prevent the possibility of this occurrence.
The question as to the liability of the tug is a much more difficult
one, and dépends entirely upon the eonduct of her master after the
propeller had swung to port so far as to shut in her red and exhibit
her green light, and the danger of collision had become imminent.
Some minutes prior to this the two vessels had exchanged signala of
one whistle, and where proeeeding witb a perfect undefstanding that
each was to pass upon the port side of the other. The sudden star-
boarding of the propeller, and the exhibition of her green light, were
calculated to create an uncertainty in the mind of Capt. Tormey as
to the intention of the propeller. He might draw the inference either
that the propeller had starboarded to go down the channel between
Bois Blanc island and the mainland, as was actually the fact, or that
she had repudiated the understanding, and was endeavoring to take
a new course down on the starboard side. Acting upon this hypo-
thesis, he blew two whistles, and starboarded. This would bave been
a proper maneuver had the intention of the propeller been as he sup-
posed ; he was mistaken, however, and the maneuver brought about
the collision it was intended to avoid. His proper course was to
comply with rule 3 of the Supervising Inspectors, which reads as fol-
lows:
Rule 3. "If, when steamers are approaching each other, the pilot of either
vessel fails to understand the course or intention of the other, whether from
signais being given or answered erroneously, or from other causes, the pilot
80 in doubt shall immediately signify the same by giving several short and
rapid blaats of the steam-whistle; and if the vessels shall hâve approached
within half a mile of each other, both shall be immediately slowed to a speed
barely sufflcient for steerage-way until the proper signais are given, answered,
and understood, or until the vessels shall hâve passed each other."
The same obligation to slacken speed ia contained in the twenty-
first sailing rule of the Eevised Statutes, (section 4233,) in the follow-
ing terms:
" E very steam- vessel, when approaching another vessel so as to in volve risk
of collision, shall slacken her speed, or. if necessary, stop and reverse."
As it is substantially agreed that the propeller was only about 600
feet off when her green light was exhibited, it is at least open to
doubt whether the action of the tug did, in fact, contribute to the col-
lision, and whether any maneuver upon her part could hâve pre-
vented it, The gentlemen by whom I hâve been assisted upon the
argument advise me that, in their opinion, the vessels were then too
close together for any efficient action upon the part of the tug. But
THE JAY aOULD. 769
to exonerate her for her departure from the rules I apprehend that
it must be shown with reasonable certainty that such departure could
not hâve contributed to the disaster which followed. The rule is en-
tirely well settled, both in this country and in England, that the vio-
lation of any statutory requirement will be presumed to hâve con-
tributed to the collision. ïhus, in the case of The Pennsylvania, 19
Wall. 125, -where a bell was rang by a sailing vessel under way in a
fog, when the rule prescribed that a fog-horn should be blown, Mr.
Justice Steong, speaking for the suprême court, observes :
"That when, as in this case, a ship at the time of a collision is in aetual
violation of a statutory rule intended to prevent collisions, it is no more than
a reasonable presumption that the fault, if not the sole cause, was, at least,
a contributory cause of the disaster. In such a case the burden rests upon
the ship of showing not merely that her fault might not hâve been one of
the causes, or that it probably was not, but that it could not hâve been. Such
a rule is necessary to enforce obédience to the mandate of the statute.
* * * The évidence in the présent case leaves it uncertain whether, if a
fog-horn had been blown on the bark, it would not hâve been heard sooner
than the bell was heard, and thus earlier warning hâve been given to the
steamer — seasonable warning to hâve enabled her to keep out of the way.
* * * It may be assumed, therefore, that the législature acted under the
conviction that a fog-horn could be heard a greater distance than a bell,
and required the use of one rather than that of the other for that réason.
To go into the inquiry whether the législature was not in error — whetlier,
in fact, a bell did not give notice to the steamer that the bark was where she
was as soon as a fog-horn would hâve done — is out of place. It would be
substituting our judgraent for the judgment of the law-making power. "
The obligation to slacken speed whenever by a false maneuver on
the part of another vessel a steamer incuïs the danger of collision,
has been enforced in numbers of cases, and under circum stances
very similar to those which existed in the case under considération.
The Hmtsville, 8 Blatchf, 228, 231 ; The Cornet, 9 Blatchf. 323, 329;
The Ogdensburg, (Chamberlain v. Ward,) 21 How. 548, 660; The Man-
itoba, 2 Flippin, 2él, 255. By far the most exhaustive discussion of
this question is contained in the judgment of the house of lords in
The Voorwarts and Khédive, L. E." 5 App. Cas. 876. This was a col-
lision in the straits of Malacca. 'The two steamers were heading
upon nearly opposite courses, and appeared about to pass each other
safely, green light to green light; but when they were about half a
mile apart the Voorwarts suddenly ported her helm and threw her-
self across the bows of the Khédive and rendered a collision immi-
nent. The captain of the Khédive ordered the helm to be put hard
a-starboard and the engineers to stand by the engines. Two minutes
af terwards he ordered them to stop and reverse ; and a minute and
a half afterwards the collision took place. The judge of the admiralty
court held that both ves sels were in fault. The court of appeal found
the Voorwarts solely to blâme for the collision, and reversed the judg-
ment of the admiralty court. The house of lords reversed the judg-
ment of the court of appeals and restored that of the admiralty court,
v.l9,no.l0— 49
770 FEDE&AIl BEPOBTïiB.
their lordships holding generally that it -was the duty of the Khédive
to stop and reverse as soon as the Voorwarts threw herself across the
bows of the Khédive, notwithstanding the fact that it was shown that
the master had acted with ordinary care, skill, and nerve as a sea-
man, and stopping and reversing at once would not hâve prevented
the collision. It is true that this case was decided under section 17
of the merchant-shipping act of 1873, which declared that "if in any
case of collision it is proved to the court before which the case is
tried that any régulation for preventing collisions contained in or
niade under the merchant-shipping acts, 1854 to 187,3, bas been in-
fringed, the ships by which said régulation bas been infringed shall
be deemed to be in fault, unless it is shown to the satisfaction of thé
court that the circumstances of the case made departure from the
régulation necessary." I think, however, this statûte does not vary
the rule laid down in the case of The Pennsylvania, supra, to any apr
preciable extent. Their lordships acted uponthe opinion of the court
of appeal, that the Khédive was not to blâme until after the collision
was imminent, or, perhaps, inévitable. The court held generally that
it was the duty of the Khédive to hâve stopped and reversed her engines,
and that there was nothing in the circumstances rendering a depart-
ure from the rule necessary to avoid immédiate danger; and that even
if it would be, in the absence of a positive rule, proper seamanship to
keep way on the ship in order to make her more manageable, which
was not clear, the législature had thought it better to prescribe the
course which must be followed. Lord Watson, in bis opinion ob-
serves:
"It appears to me that it was the deliberate policy of the législature to com-
pel sea captains, when their vessels are in danger of collision, to obey the rule,
and not to trust to their own nerve and skill; and that it wàs an essentialpart
of the same policy to admit of no excuse for non-observance of the rule, short
of satisfactory évidence, either that the captain was constrained to disobey it
by other périls of the sea or that he adopted a course which, in the circum-
stances, was better than that prescribed by the rule. And, for my own part, I
cannot think the législature has acted unwisely in applying a uniform statu-
tory test to ail such cases, instead of leaving them to be decided by the varia-
able test of 'foMlt,'' as ascertained in each case, with the aid of nautieal opin-
ion."
The same rule was applied to the non-exhibition of lights by the
privy council in the case of The Hochung and Lapwing, L. E. 7 App.
Cas. 512.
There are cases, it is true, in which a master is justified in con-
tinuing at full speed even though a collision be imminent; but they
are rare and dépend upon circumstances whoUy exceptional. Such
a case was presented at the last term in The Golicell and Joy, where
a tug having three vessels, with their sails up, in tow, was proceed-
ing down Lake Erie, with a favorable wind, and met another tow
coming up, which attempted to cross the bows of the former. We
held in this case that the tug- was justified in proceeding at full
. .THE. liBLAKD. ÏÎTil'
speed, both because it was her duty to pull her own tow as far away-
from the other as possible, and because the force and direction of the
■wind was such that a collision with herown tow would bave been almpst ,
inévitable in case she had stopped; but it inust be made to appeaf
beyond a reasonable doubt, in ail cases where the twenty-first'rule
applies, that the failure to stop or reverse was demanded by the
spécial circumstanees of the case, and that collision would in ail
probability hâve occurred had the statutory course been pursued. It
would be exceedingly dangerous to allow the masters of steam-vessels
to exercise their best judgment in ail cases in determining whether
or not the statute should be obeyed, although we understand this to
be the gênerai practice npon the lakes. This is substantially held in
the cases above cited. The better rule is to hold the master in fault
for the disobedience of the statute in every case where he eannot
make it appear that a departure was imperatively demanded.
In the case under considération, while I differ from the nautical
assessors with great hésitation, I am not entirely prepared to concur
in their opinion that the collision would still hâve happened had the
tug kept her course and stopped her engines. Considering that the
propeller had time, not only to recover from her swing to port, but
to swing so far to starboard as to strike the tug at nearly a right
angle, although the tug herself swung only one point to port, it seems
to me that if the tug had kept her helm and stopped her engin e she
would hâve swung clear of the propeller, and the disaster would hâve
been averted. As the tow was proceeding against a current of two
or three miles an hour with sails furled, ther« would bave been little,
if any, danger of fouling the tug or each other. I hâve not over-
looked, in this connection, the many rulings which hold that an error
of the master committed at the moment of collision is not a fault,
Such an error is pardonable upon the theory that the master may
resort to any maneuver to ease the blow. But I am not aware of
any case which holds that a steamer may continue at full speed, un-
less she can show beyond a reasonable doubt that the collision was then
inévitable.
Tbere must be a decree adjudging both vessels in fault, and refer-
ring it to the clerk as commissioner to aasess the damages.
The llELAND.
(District Court, ilT, D, Illinois. February 25, 1884.)
Collision — Obligation oi" United States Navigation Laws.
The obligation of the United States navigation laws, relative to the rate of
speed allowed a steamer in oi-der to prevent itg colliding with other vessels in
its path, does not become operative until the vessels are known to be about to
meet. Nevertheless, moderate speed must always be used by steamers in a fog.
772 FBDEBAJi BSFOBTEB.
2" SAMH — MODBRATE SPEED.
The criterion of moderate speed is the condition of the steamer to be stopped
imtnediately upon the appréhension of danger ahead.
3. Samb— Evidence — Bukden of Pkoof.
Proof that the partjr has vlolated the navigation laws, and heen otherwise
négligent, lays upon him the burden of proving that the damage did not resuit
from such violation and neglect.
4. Bamb— BoiBNTinc Theokies.
Scientiflc acoustic théories cannot be safely aocepted generally in esplnnation
of the failure of fog-horns to be beard.
5. Same — Mbasueb of Damage.
The oïiginator of the damage whereby the veasel is exposed, more or lésa
bolpless, to destruction by the éléments, is responsible for the eutire damage
done.
In Admiraity.
H. W. Magee, for libelant.
Schuyler é Kremer, for respondent.
M. H. Beach, of counsel, for respondent.
Blodgett, J. This is a libel by the owner of the schooner E. M.
Portch to recover damages sustained by a collision between said
schooner and the steam-barge Leland, on the waters of Lake Michi-
gan, on the evening of March 26, 1882, the collision in question hav-
ing oocurred about 17 nailes oS the west shore of the lake, and nearly
opposite a point midway between Manitowoc and Sheboygan. The
Portch was running light, bound on a voyage from Chicago to Rowley
bay for a cargo of railroad ties. The Lelaud was loaded with about
500 tons of pig-iron and some other freight, making a total cargo of
about 550 tons, and bound on a voyage from Elk Eapids, Michigan,
to Chicago. The libelant charges that this collision was caused
whoUy by the négligence of those Jn charge of the Leland ; and the
défense, on the part of the respondent, is that there was either con-
tributory négligence on the part of those in charge of the schooner, or
that the alleged négligence on the part of the Leland did not cause
the collision. The collision in question, as near as it can be deter-
mined from the proof, occurred a few minutes before 8 o'clock in the
evening; the windwas about south-east, a light sailing breeze of from
four to five miles an hour, and the weather very thick and foggy ; the
course of the Portch was about N. by E., and that of the Leland S.
by E. From a careful study of the proof I conclude that the Leland
■was running at the rate of at least eight miles an hour, and the Portch
was making from four to five miles an hour, at the time the vessels
sighted eaeh other. It must be conceded, I tbink, from the proof,
that neither of the crews of thèse two vessels was aware of the prox-
^4mity of the other until they were about 300 feet apart, when they
seem to hâve sighted each other about simultaneously. The proof on
the part of the libelant ail tends to show that the fog-horn was prop-
erly and continuously sounded on the schooner, "as required by the
sailing rules, for more than two hours before the collision, and that
her rate of speed was not dangerous."
THE LEIiAHD. 778
The négligence on tlie part of the Leland, ralied on by the libelant,
is (1) that she had not a saffîcient steam-whistle ; (2) that ber steam-
■whistle was located abaft the f unnel, instead of bef ore the f unnel ; (3)
that said steam-whistle was not sounded as required by law, at inter-
vais of not more than one minute ; (4) that said steamer was run-
ning at too high a rate of speed; (5) that she had not a proper look-
out.
It is admitted that the steam-whistle of the Leland was located
abaft of the smoke-stack or funnel, and I am satisfied from the proof
that this whistle was not as strong and effective as a steamer engaged
in the navigation of the lake should carry for the piirpose of giving
Bufficient warning to other vessels in the vicinity. It is true the law
does not specify the dimensions or "power of the steam-whistle to be
carried by a steamer, but it is manifest that the whistle must be
such as to give an effective warning to other craft in time, by the
use of ordinary care and skillful seamanship, to avoid a collision.
Eule 15 of section 4233, Eev. St., reads as foUows:
"Whenever there is a fog or thick weather by day or night, fog-signals
shall be used as foUows: (A) Steam-veasels under way shall sound a steam-
whistle, placed before the funnel, not less than 8 f est from the deck, at inter-
vais of not more than one minute. {B) Sail-vessels under way shall sound
a fog-horn at intervais of not more than flve minutes."
By a later régulation of the board of marine inspectors, approved
by the secretary of the treasury, which gives this régulation the force
of a statute, the intervais between the sounding of the fog-horn is re-
duced to two minutes. The proof on the part of the libelant tends
to show that the whistle on the Leland was not sounded of tener than
once in eight to ten minutes, and the proof on the part of the respond-
ent does not show that it was sounded more frequently than at inter-
vais of from three minutes to a minute and a half, so that the proof,
even on the part of the respondent, shows a disregard of this rule as
to the frequency with which the whistle was sounded, as well as of
the location of the whistle. Eule 21 provides that "every steam-
vessel, when approaching another vessel so as to involve risk of col-
lision, shall slacken her speed, or, if neeessary, stop and reverse ; and
every steam-vessel shall, when in a fog, go at a moderato speed."
The obligation imposed by this rule, to slacken speed, or, if neeessary,
stop and reverse when a steamer is approaching another vessel so as
to involve risk of collision, does not, of course, become oper/itive until
those in charge of the steamer know that they are approaching an-
other vessel ; but the duty of a steam-vessel, when in a fog, to go at
a moderato speed is one constantly resting upon her under such cir-
cumstances ; and it is an undoubted violation of the sailing rules for
a steamer to run at a reckless or dangerous rate of speed in a fog.
What is a moderate, and what is a dangerous, rate of speed, are, of
course, to some extent, comparative terms, depending upon surround-
ing circumstances. The testimony of the varions witnesses in this
774 FEÇBBAIi BEFOIiI£B,
ease as to the speed of the steamer, at the time she sighted the schooner,
varies from seven miles an hour, which is the lowest estimate of re-
spondent's witnesses, to eleven miles an hour, which is the highest
estimate of libelant's witnesses. I conclude, however, from the proof
that the speed of the steamer was at least eight miles per hour,
and may hâve been eight and a half, at the time the schooner was
sighted by those on board the steamer; and this rate of speed, I bave
no doubt, was too great in a dense fog, in the night-time, upon waters
where the liability to collision was so imminent as on the waters of
Lake Michigan, even at this early season of the year ; as this collision
occurred upon one of the great thoroughfares of the lake, where vessels
engaged in the lumber trade between ports on this lake are almost
constantly passing at ail times wfaen navigation is open.
The case of The Pennsylvania, 19 Wall. 133, is instructive upon
this question. The court, by Mr. Justice Steong, says :
"The two vessels were not more than two or three hundred feet apart, and
the steamer had the bark almost across her bow, yet it is possible that if her
helm had been put to starboard, instead of port, when the lookout announced
' bell on the starboard bow, ' and had been kept starboarded, the collision inight
either havo been avoided or hâve been much less disastrous. « * * But
if this is not to be attributed to her as a fault, there is no excuse to be found
in the évidence for the high rate of speed at which she was sailing duriug so
dense a fog as prevailed when the vessels came together. The concurrent
testimony of witnesses is that objects could not be seen at any considérable
distance, probably not further than the length of the steamer, and yet she was
sailing at the rate of at leaat seven knots an hour, thus precipitating herself
into a position where avoidance of a collision with the bark was difflcult, if
not impossible, and would hâve been even if the bark had been stationary,
and she ought to hâve apprehended danger of meeting or overtaking vessels
In her path. She was only 200 miles from Sandy Hook, in the track of out-
ward and inward bound vessels, and where their présence might reasonably
hâve been expected. It was therefore her duty to exercise the utmost caution.
Our rules of navigation, as well as the British ruies, require every steam-ship,
when in a fog, ' to go at a moderate rate of speed.' What is such speed may
not be precisely deflnable. It raust dépend upon the circumstances of each
case. That may be moderate and reasonable in some circumstances which
would be quite iramoderate in others. But the purpose of the requirement
being to guard against danger of collisions, very plainly the speed should be
reduced as the danger of meeting vessels is increased. In the case of The
JEuropa, Jenk.Bule Koad, 52, it was said by the privy council, ' This may be
safely laid down as a rule on ail occasions, fog or clear, light or dark, that
no steamer has a right to navigate at such a rate that it is impossible for her
to prevent damage, takingall précaution at the moment shesees danger tobe
possible, an^ if she cannot do that without going less than five knots an
hour, then she is bound to go at less than flve knots an hour. "
So, in the case of The Colorado, 91 U. S. 692, the suprême court,
speaking by Mr. Justice Cliffobd, said :
"Lights and other signais are required by law, and sailing rules are pre-
seribed to prevent collision, and to save life and property at sea, and ail expé-
rience shows that the observance of such régulations and requirements is
never more necessary than in a dense fog, whether in the harbor or in the
open océan, if the vessel is in the common pathway of commerce.
ÎHE liEtjÀND. 775
"Mariners dread a fog much more than high winds or rough seas. Nautical
skill, if a ship is seaworthy, will usually ênable the navigator to overcome the
dangers of the winds and the waves, but the darkness of the night, if the fog
is dense, brings with it extrême danger which the navigator knows may de:^
every précaution withinthe power of the highest nautical skill. Signal lights
in such an emergency are valuable, but they may not be seen; bells and fog-
horns, if constantly rung or blown, may be inore effectuai, but they may not
be heard. Low speed is indispensable, but it will not entirely remove the
danger, nor will ail thèse précautions in every case hâve that efl'ect. Perfect
security, under such circurastances, is impossible."
In the case of Tke Manistee, 7 Biss. 35, the learned circuit judge
of this circuit found from the proof that the rate of speed of the
steamer was seven miles per hour, and said :
"Now, without laying down any absolute rule as to speed at which a
steamer should run in a fog on thèse lakes, there can be no question but that
when a steamer is running in the fog, surrounded by sail-vessels, as this
steamer knew that she was, and in close proximity, that to run at the rate of
speed that this propeller was running was a gross wrong — a great risk which
she had no right to incur — ^to the sailing ressels that were near. I know what
steam-boat men say, that they must make their time; that they must run in
the fog. But théycannot bepermitted to run with their usual speed in a
fog, surrounded by sail-vessels, against which they are liablè to collide at any
moment."
The proof as to the want of a sufficient lookout is substantially
this: The collision occùrred during the captain's watch. There was
no second mate to assist the captain. The only persoris on deok
were the wheelsman inside the pilot-house, the captain who was at-
tending to the sounding of the fog-whistle signais, and a night-watch-
man by the name of Cook who was doing the duty of lookout and also
had charge of the lights and such other dutiea as devolve upon a
night-watchman on board of a steamer. A few minutes before the
collision this watchnian had been below to call the watch, which was
changed at 8 o'clock. And although both he and the captain concur
in the statement that he was standing near the captain by the pilot-
house just at the moment of collision, yet from the disclosures in the
testimony he could hâve been there but a few moments prior to the
time the schooner was sighted; the testimony on the part of the
schooner showing that her fog-signals were sounded regularly and
' continuously, as required by law, it is possible, if not probable, that
if Cook or any other compétent lookout had been stationed in the
proper location upon the steamer, charged with the single duty of
looking out for other vessels and listening for fog-signals, he might
hâve heard the f og-horn from the deck of the schooner ; and I con-
clude, therefore, that this steamer at the time of this collision had
not a compétent lookout, such as the ordinary rules of prudent navi-
gation require, A vigilant lookout, whose sole business it is to look
out for other vessels and listen for fog-sjgnals, is deemed absolutely
necessary on any vessel running in the night-time, but ail the more
necessary in a fog.
776 FEDERAL EEPOKTEB.
In St. John v. Paîne, 10 How. 685, the court said:
"A compétent and vigilant lookout, atationed at tlie forward part of the
vessel, and in a position best adapted to descry vessela approaching at the
earliest moment, is indespensable to exempt the steam-boat from blâme in
case of accident in the night-time, while navigating waters on which it is
aceustomed to meet other crafts."
In The Genesee Chiefy. Fitzhugh, 12 How. 447, it is said:
"It is the duty of every steam-boat traveraing watera where sailing vessela
are often met with, to hâve a truatworthy and constant lookout besides the
helrasman. It is impossible for him to steer the veasel and keep the proper
watch in hia wheel-house. His position is unfavorable to it, and he cannot
safely leave the wheel to give notice when it becomea necessary to check sud-
denly the speed of the boat. And whenever a collision happena with a sail-
ing veasel, and it appears that there was no other lookout on board the
steam-boat but the helmsman, or that such lookout was not atationed in a
proper place, or not actively and vigilantly employed in hia duty, it must be
regardai aaj)rfw»a/ac4e évidence that it was oecasioned by her fault."
In Chamberlain v. Ward, 21 How. 570, Mr. Justice Clifford says :
"Steamers navigating in the thoroughfarea of commerce must hâve con-
stant and vigilant lookout stationed in proper places on the vessel, and
charged with the duty for which lookouts are required, and they must be
actually employed in the performance of the duty to which they are aasigned.
To constitute a compliance with the requirements of law, they must be per-
sons of suitable expérience, properly stationed on the vessel, and actually and
vigilantly employed in the performance of that duty, and, for a failure in
either of thèse particulars, the vessel and her ownôra are reaponsible."
In The Colorado, 91 U. S. 699, the same judge said:
"Lookouts are valueless unless they are properly stationed and vigilantly
employed in the performance of their duty; and if they are not, and in con-
séquence of their neglect the approaching vessel is not seen in season to pre-
vent a collision, the fault ia properly chargeable to the vessel, and will render
her liable, unless the other vessel was guilty of violating the rules of naviga-
tion." Baker v. City o/N. Y. 1 OlifE. 84; Whitridge v. Dill, 23 How. 453;
The Catharine, 17 How. 177.
But it is contended by respondent that, although thèse acts of neg-
lect may be established by the proof, still the proof fails to show that
the collision was oecasioned by any one, or ail combined, of thèse vio-
lations of the sailing rules or acts of négligence ; and it is insisted
that the collision in question was an inévitable accident; that the fact
that the fog-hom was properly blown on the schooner and the whistles
sounded on the steamer at intervais of from one and a half to three'
minutes, and that thèse signais were not heard on the other vessel, is
proof that the condition of the atmosphère was such that sounds were
not transmitted in the usual and ordinary manner, and that hence
neither was notified of the proximity of the other vessel ; and the well-
established rule is invoked by the respondents, that the mère viola-
tion of sailing rules, or an act of négligence, is not of itself proof to
sustaîn a claim for damages, or make the party guilty of thèse acts
of négligence liable for damages, unless it appears that the damage
or injury was oecasioned by reason of suoli acts of négligence or vio-
THE LBLAND. 777
lation of the sailing rules. It îs also contended by respondents that
the schooner was at fault because her ligbts were placed in the mizzen
instead of her fore rigging, thus placing the lights further aft, and
thereby diminishing, by the distance between the fore and mizzen
rigging, the distance forward at which the lights could be seen; but
as the proof shows that the apper sails of the schooner -were seen be-
fore her lights were discovered on the steamer, owing to the fact that
the fog was more dense near the water, I cannot believe that the lo-
cation of the lights had anything to do with the collision. I think
the more correct statement of the point involyed in this branch of the
case would be to say that ■where a party sought to be charged with
the damage is shown to bave been guilty of palpable négligence in
seamanship, or to hâve violated the statutory rules of navigation, such
parties should be held responsible, unless it is shown that the damage
complained of was not the resuit of such négligence or violation of the
rules of navigation. In other words, proof of violation of the fixed
statutory rules of navigation, and of other acts of négligence by the
party causing the damage complained of, casts upon such party the
burden of proof that such damage was not occasioned by this neglect.
In the case of The Morning Light, 2 Wall. 550, Mr. Justice Clif-
FOKD says :
"Différent définitions are given of what is called an inévitable accident ou
account of the différent circumstances attending the collision to which the
ruie is to be applied. Such diaasters sometimes coeur when the respective
vessels are each seen by the other. Under those clrcumstances it is correct
to say that inévitable accident, as applied to such a case, must be understood
tp mean a collision which occurs when both parties hâve endeavoreà by every
means in their power, with due care and caution, and a proper display of
nautical skill, to prevent the occurrence of the accident. When applied to a
collision occasioned by the darkness of the night, perhaps a more gênerai
définition is allowed. • Inévitable accident,' says Dr. Lushington, in the
case of The Europa, 2 Eng. Law & Eq. 559, ' must be considered as a rela-
tive tenu, and must be construed not absolutely,but reasonably, with regard
to the clrcumstances of each particular case; viewed in that light, inévitable
accident may be regarded as an occurrence which the party charged with the
collision could not possibly hâve prevented by the exercise of ordinary care,
caution, and maritime skilL"
So in the case of The Grâce Qirdler, 7 Wall. 196, the suprême court
eaid:
"While fault is shown on the part of the damaging vessel, it is încumbent
on her to show that such fault had in no degree the relation of cause and
eflect to the accident."
And in référence to the point that thèse fog-signals were unavail*
ing on account of the peculiar condition of the atmosphère, I can
only say that the researches and experiments of scientists, as detailed
in later works on acoustics, as well as the common expérience of the
unlearned, seem to show that the capacity of the atmosphère to trans-
mit sounds is not only much less at some times than others, but at
times tliere is a condition of nearly or quite "aeoustie opacity.''
778 FEDERAL EEPOBTEB.
Tynd. Sound, Pref. to 3d Ed. ; also chapter 7 of same édition. But
unfortunately we seem to hâve as yet no test, except actual experi-
ment at tlie time, to show or prove when such conditions exist. Tho
"acoustic cloud," as it is called, is not visible to the eye or palpable
to the toueh, It, as observation would seem to show, may exist onlj
momentarily, and even some sounds may be transmitted and others
not. It ean hardly be safe, therefore, to accept this assumed scien-
tific theory as a défense upon the mère proof that sound-signals
were not heard, at least imtil the party invoking this défense shows
that be bas fully complied with ail the requirements and conditions of
the law in regard to the giving of bis signais and the appliances by
which they are to be made. It will not do to accept the défense that
the atmosphère was acoustically opaque without something more
than the proof in this case. The effeet of acoepting such a défense
on such proof woulil be to hold that in ail cases where signais are not
heard in a fog, it was attributable to the atmosphère, and not to the
négligence of the parties chargea by the law with the duty of giving
such signais by means of certain instrumentalities, and at certain in-
tervais.
I do not find anything in the record in this case which would justify
me in presuming that this condition of the atmosphère existed on the
night in question. It was a foggy night; the fog was thick and dense;
no high wind was blowing and notbing unusual or out of the ordi-
nary appearance of foggy nights was noticed or observed by any of
the witnesses in the case. The mère fact, standing by itself, that the
crew on one of thèse vessels did not hear the signais ùpon the other
before the vessels sighted each other, is not, I think, sufficient to suâ-
tain the assumed scientific theory invoked by respondénts. We must
remember thèse vessels were approaching a common point where
their courses intersected at a very oblique angle, and at the rate of at
least 12 miles an hour, Assuniing, as I think we are justified in do-
ing, from the évidence, that the whistle was not sounded of tener than
once in three minutes, the two vessels might bave been 2,100 feet, or
two-fifths of a.mile, apart at the time the last blast was given from
the whistle of the steamer prior to the collision; and from the proof
in regard to; the distance at which it eould be heard on the night in
question, it is extremely doubtfùl whether the sound from the whistle ,
would bave penetxated this dense fog in face of whatever breeze was
blowing, to a distance of one-tbird of a mile on the night in question,
without assuming that a phénoménal atmospheric condition prevail-
ipg at the time prevented thçse, signais from being heard. The fog-
horn on the schooner probably could.not hâve been heard over 300
to 500 feet; and with the vessels approaching a common point at the
velocity shown tiy the proof, the last blàst from the fog-horn might
bave been properly blown and yet not bave been heard on the steamer
before the vessels were in sight of each other and in péril of collis-
ion.
THE IiELANÏ). ' 779
It is urged that if the seliooner had heard the whistle oî the steamer
she could hâve only done precisely what she did do, and that is, keep
her course ; and that as the two Vessels were approacJhing each other
upon courses which would bring them together, the collision might
hâve occurred, althongh the schooner did hear the fog-signals on the
steamer. The answer to thia is that if the schooner had heard the
fog-signals on the steamer they might hâve displayed a torch or fiash-
light, which wonld hâve penetrated'the fog a greater distance, and
given the steamer notice of the proximity of the schooner ; and it is
also worthy of suggestion that, if the schooner had heard the fog-sig-
nal on the steamer, and the steamer, by reason of the density of the
fog, or from any other reason, had not heard the signal from the
schooner, the schooner would hâve been bound by rule 24 to hâve
done ail she could to avoid the immédiate danger, which she could
readily hâve done, as soon as the locality of the steamer was deter-
mined, by sounds from her fog-signals. Se», also, if the steamer had
been going at a moderate rate of speed, say four to five miles an hour,
she would not hâve crossed the course of the schooner in time to hâve
brought the two vessels together. It required just the speed at which
the steamer was running, combined with the course and speed of the
schooner, to bring about a collision between the two vessels at the
point where their courses crossed, and if the steamer had been going
slower, the collision wouid not hâve occurred;- but the main reason
in my mind for insisting that the speed was too great in this case, is
the fact, disclosed in the proof , that when the'master of the steamer
sighted the schooner, when the two vessels were about 300 feet apart,
he at once ordered his helm hard a-port, stopped and reversed his en-
gine, and backed, ând yet he was so near to the schooner that this
maneuver was ineffectuai, and this collision occurred.
The rule, as intimated in the authorities I hâve cited, would indi-
cate that the standard or criterion of spèed at which a steamer ean
safely proceed in a dense fog, upon a highway of commerce like this,
and when the péril of collision is ever présent, is only such speed as
will enable her to stop, so as to avoid a collision after she sights or
hears the signais of a sail-vessel crossing her path. If the condition
of the atmosphère is such that approaching. vessels can be seen or
heard half a mile away, a steamer may run at a rate of speed which
will enable her to stop or change her course in a half mile, but if it
is so thick or dark that other vessels cannot be seen bver 200 feet,
then, the steamer's speed must be proportionally slower, so that she
can stop or safely change her course so as to avoid the collision after
she discovers the sail-vessel. We find then that this steamer directly
violated the rules of navigation by locating her whistlô abaft her
smoke-stack. It must be presumed that congresa inôxpressly en-
acting that the steam-whistle must be placed before' thé funnel, did
80 because the funnel would intercept or break the waves of sound
from the whistle and prevent their beiiig projected or sent forward
7S0 FEDERAL BBPOETBB.
in the patliway of the steamer, as tliey should be, in order to prove
effective as fog-signals. We find, further, that thèse fog-signals were
not sounded with such frequenoy as the statute expressly requires.
We find, also, that there was no such efiScient lookout on the deek of
this steamer as common prudence required; and thèse faults, being
clearly brought home to the steamer, I think she must be held re-
sponsible as the direct cause of the collision.
But it is further urged that the loss of this schooner was not the
direct and necessary conséquence of this collision. The proof upon
this branch of the case shows that the schooner was struck upon her
port bow, and her entire bow broken in down to the water-line. She
did not take in water very rapidly at first, however, and the steamer
took her in tow and headed, for a time, towards Manitowoc, as by
running in that direction away from the wind she did not encounter
the waves so heavily but that her pumps could keep her clear. After
a time the wind changed somewhat, and her course was shifted, and
the schooner was towed nearly opposite the entrance of Sheboygan
harbor, where she was let go at about half-past 4 o'clock in the
morning after the collision. Attempts were made, by the master and
crew of the steamer, to get her towed into the harbor, and the assist-
ance of some light tugs, employed in the fishing business at She-
boygan, was obtained, they being the only tugs available for the pur-
pose there; but by the time the tugs got hold of her, so much water
had been taken in that she had sunk so deep as to prevent her being
taken over the bar and inside the harbor. The wind shortly after-
wards increased in violence, and the resuit was the vessel was driven
on shore, sunk, and broken up. It is contended, from thèse facts,
that the destruction of the vessel was in conséquence of the storm
which came up after the steamer had towed herto the mouth of She-
boygan harbor, and that the injury from the collision was not the di-
rect and proximate cause of the loss of the schooner. But it seems
to me the proper way of looking at the matter is to inquire what
would hâve been the probable effect of this blow upon the vessel if
she had been left out in the lake, 17 miles from land, where the col-
lision took place. Would she hâve probably survived this injury,
and could she, by proper seamanship and eare, hâve been taken into
a place of safety ? With her bows broken open, as is shown by the
proof in this case, I can hardly imagine that this vessel could hâve
been safely navigated by herself to a port of safety, and I can only
consider her. final disaster as occurring in spite of ail that was done
by the steamer and the crew of the schooner to save her. In my es-
timation, from the proof, she would hâve sunk if left out in the lake
where the collision occurred. She only sunk and went to pièces upon
the shore after, she was towed to the mouth of the harbor. What was
done to save her was unavailing. If nothing bad been done, the same
resuit would hâve, perhaps more speedily, followed, and she would
bave more readily waterlogged out in the lake, and either sunk or
THE LELâND. 781
drifted upon the shore, and finally fallen a helple^s victim of the same
gale which drove her ashore and wrought her final destruction; but
the helpless condition which made her the victim of this gale was the
injury reeeived in the collision. I therefore corne to the conclusion
that tlie loss of the Portch is fairly and properly chargeable to the
acts of the Leland, and that she should be held responsible therefor.
There is a large amount of testimony in the record in regard to the
value of the Portch, and as her loss was substantially total, only about
$600 worth of wreckage having béensaved fromlier, it becomes very
material to inquire what was the value of the vessel at the time of
the collision. Libelant claims not only the value of the vessel, but
the value of the net amount .of freight, which she would hâve earned
on the voyage she was then prosecuting, together with nearly |6,000
which he expended in endeavoring to get her oflf after she had been
driven on shore by the gale. In regard to the claim for freight and
the cost of the unavailing efforts to save the vessel, I am clearly of
the opinion that none of thèse items can be allowed, and that the true
measure of damages is the value of the schooner at the time of the
collision and interest from that time. The Baltimore, 8 Wall. 386;
The Fàkon, 19 Wall. 75; Pajewski v. Canal Co. Jl Fed. Ebp. 313.
The commissioner, from the proof before him, came to the conclusion
that the value of the schooner was $16,800, and so finds by his re-
port. I am of the opinion that this estimate is somewhat high, and
that the more reliable proof in the case does not justify the finding
of the value to bave exceeded $15,000. It is true, there is a wide
range of judgment among the varions witnesses as to the value of
the schooner at the time of the collision, but a large proportion of
the libelant's testimony, in my estimation, gives a spéculative value ;
and while the respondent's testimony seeks to limit the liability
to what was considered by the insurance inspectors as her insur-
able value, I think the more reliable testimony is that of Oliver,
Dunham, Holmes, and such witnesses, who were engaged in buying
and selling vessels, and who offered to buy this vessel, and would hâve
bought her if they could hâve got her for $15,000, but were not will-
ing to pay more than that. I therefore conclude tha,t her value was
$15,000. The exceptions to the commissioner's report are therefore
overruled in ail respects, except that said report is modifled by find-
ing the value of the schooner to be $15,000 instead of $16,800, In
reaching this conclusion as to th^e value of the schooner, I am not dis-
posed to make any déduction for the value of the wreckage saved.
The libelant expended a large sum of money, as I hâve no doubt, in
good faith, in efforts to get the schooner off after she had gone ashore.
This amount being disallowed, I do not think injustice will be done
by allowing the benefit of this salvage to the libelaot.
A decree will be entered finding the Leland at fault, and finding
the libelant's damages to be $15,000, the value of the schooner, and
interest thereon at 6 per cent, pèr annum from the twenty-sixth of
Mardi, 1882, when the collision occurred.
78â FEDEBAIt BEFOBTEB.
The C. N. Johnson.
(District Court, B. D, Mâiigan. February 18, 1884. j
1. Maritimb Lien— Okedïtob Enforoing Lien against Vessbl— Due Dilt-
GENCB.
The obligation of a creditor to use due diligence in the enforcemCnt of hia
lien ijpon a vessel, as against a bonafide purcliaser, is nol always digcharged by
taking out process in tbe port or disti'ict wliere the claim accrued and puttlng
it in the hands of the marshal, even though that may be her home port or
one she has been in the habit of frequenting. Tliere are circumstauces under
which he may be bound to foUow her into other districts.
2. Samb— BoNA FiDE PuBCHASBR— Knowledge of Cheditor.
A vessel was repaired at Chicago in the spring of 1880, and was soon after-
wards taken to Lake Erie. In the spring of 1881 she was sold to a person re-
siding in Buflalo, who had no notice of the claim for repairs, and continued to
run upoa the lower lakes. Thie creditor was theieupon informed of such sale,
soon after it took place, and of the fact that she was navigating the lower lalces,
but made no attempt to enforee his claim until December, 18b2. lleld, that he
should hâve endeavored to seize the vessel at Bulïalo, or some other port which
she frequented, as soon as he was informed that she had been sold; and that
his claim was stale.
In Admiralty.
This was a libel for repairs put upon the sehooner C. N. Johnson,
at the port of Chicago, in the spring and early summer of 1880, to
the amount, including interest, of $710.34. Défense, stale claim.
One Buckley was the real owner of the vessel, though the title stood
of record in the name of Joseph Single, of Wausau, Wisconsin. Mil-
waukee was her home port. After the completion of the repairs, in
June, 1880, the sehooner made one trip to Green Bay, and was then
taken to the lower lakes, where she continued to run until the libel
was filed. Payments of money on the work done were made by Buck-
ley to libelants as late as July, 1881. In the fall of 1880 Buckley,
representing himself as the real owner of the vessel, began negotiat-
ing with one Weeks, the présent claimant, to exchange her for the
sehooner Malta, then known as theTosberg, stating, as Weeks claimed,
that the Johnson was unincumbered, though Buckley denied this.
The parties met in March, 1881, at Buffalo, where two or three con-
versations occurred between them as to their respective vess "-!,
Weeks insisting on $500 in cash, in addition to the Johnson, for tiie
Vosberg. But he flnally concluded to make an even exchange; and
mutual transfers took place on April 4, 1881, theoutfit of each vessel
being excepted from the trade. On the eighteenth of April, Weeks
received from Joseph Single a bill of sale of the Johnson, with cov-
enant to défend her against ail demands, and executed a like bill of
sale of the Vosberg to Single. At the tkne of the exchange there
was a mortgag-e upon the Vbsberg, given by Weeks to Vosberg and
Baker, of Buffalo, on which there was due about $1,000. This Weeks
procured to be discharged within a few days after the sale, executing
and delivering to the mortgagee, in lieu thereof, a mortgage for the
THE 0. ». JOHNSON. 788
like amount upon the G. N. Johnson. This latter mortgage Weeks
paid in fuU, in November, 1882.
Brown, J. Two questions are presented by the record in this case :
(1) Whether Weeks, the présent owner, purchased the schooner with-
out notice of libelants' claim ; (2) whether libelants were guilty of lâches
in not taking earlier proceedings against the vessel. The claimant,
Weeks, is sougbt to be charged with notice by the testimony of Buckley,
the vendor, who says he told Weeks, on two différent occasions^ that
the Johnson owed a ship-yard bill at Chicago, but did not state the
amount, as he did not know himself the balance due to the libelants.
Weeks, he says, made no reply. . In this connection he states that he
told Weeks that if the Mal ta was as good as represented he would
take care of this bill himself. Libelants' proctor also swears that
when he presented the bill to Weeks, in December, 1882, he admitted
knowledge of it at the time of the purchase. This is ail the direct
testimony upon the subject of notice. Upon the other hand, Weeks
Bwears positively that he had no notice of the claim, and dénies the
conversation with the proctor. He is corroborated by his wife, by
the witness Edward Smith, and Frederick Emery, ail of whom wère
présent at one or more conversations, during which the terms of the
sale were settled, and who testified that Buckley represented to
Weeks that the Johnson was unincumbered. It is quite improbable,
too, that after holding the matter under advisement for severalnioinths
he should bave bought the vessel, knowing there was a claim against
ier, withont inquiring who owned it, or its amount.
Buekley's testimony is open to grave suspicion, as he induced the
persûn who held the légal title to give a bill of sale, in which there
was an absolute and unqualified cpvenant to pay ail demands against
the vessel. This is a direct contradiction of his assertion that he
agreed to pay such demands only in case the Vosberg prpved, \q be
as good as represented. He also expressly admits that, by the terms
of the sale, the vessels were exehanged even and clear of incum-
brances. It is not denied that Weeks carried out his part of the bar-
gain by procuring the release of the Malta from the iqortgage run-
ning to Vosberg and Baker, who consented to accept, and actually
received, from Weeks security upon the Johnson for the debt from
-which the Malta was released ; and that Weeks, paid the mortgage
before the filing of this libel. I think the probabilities of tljecase
outweigh the testimony of libelant's proctor as to Weeks' admissions
io him. ■ While there is. nothing. tp criticise in his credibility as a
-witness, he rCiay hâve misapprehended the drift of Weeks' .statemeçt»
As was said by Judge Bettb in Sunday v. Gordon, Bia^hf,&,JËt
569-576, tôo much reliance should not be plaeed upon the. ^ersjpn:o|
conversations given by a witness who is seeking through,,them the
meana of maintaining an action iix f avor of h^s employer.. Hqw^ver
hoHestor commendable his n^otive miglit havebeen, i^ witness so ezq^
j>loyed wôuld be .exceedingly' apt tp retnembçrstatements i'avoriç^ the
78é fSDEEAIi HEPOBTEB.
■wishes of hîs employer, and to forget or not listen to explanations
and qualifications made at the time. While there is no imprbpriety
in an attorney taking the stand to make paroi proof of uncontested
facts, such as the signature to an instrument, or the indentification
of a public record, the practice of making a case for his client in the
character of a witness is not usually favored by the courts, although
there ia now little question of his competency to testify. Weeks,
Attys, §§ 124, 125; Whart. Ev. § 420; Potter v. Inhah. of Ware,
Cush. 519-524; FoUansbee v. Walker, 72 Pa. 230,
The question of lâches on the part of the libelants is less difficult
of solution. It may be conceded that they were under no obligations
to take proceedings during the season of 1880. The sale was made
early in the spring of 1881, and the testimony shows conclusively
that they were informed of it very soon after it took place. They
made no effort, however, to collect of the vessel until December, 1882,
when the claim was forwarded to their proctor hère for collection, and
the vessel was seized a few days thereafter, Their excuse for thia de-
lay is that the veaael left Lake Michigan ahortly after the repaira were
made, and continued upon the lower lakes, out of the reach of process
of the district court of Northern Illinois, during ail this time. Thia
défense raises the question whether the duty of a creditor to use due
diligence in the enforcement of a lien, as againat a honafide purchaaer,
ia discharged by taking out process in the district court where the
claim accrued, and awaiting the return of the vessel to that district
for her seizure. Courts hâve held in gênerai terms that, as againat
innocent third parties, the lien will be presumed to hâve been waived
if the creditor haa not availed himaelf of a fair opportun ityto enforce
it ; and in some cases it bas apparently been assumed, but I believe
never decided, that the creditor need do no more than wait for the
return of the vessel to his own port, or take out process in his own
district, and put it into the hands of the marshal.
In The Emma L. Coyne, 11 (Jhi. Leg. N. 98, 1 had occasion to hold
that, under the peculiar circumstances of that case, where the lien-
holder and the owner of the vessel were both résidents of the same
district, there was no obligation on the part of the former to pursue
the vessel into another district to prevent his claim from becoming
stale. No opinion, however, was intimated as to the necessity of
doing this in case the vessel were sold to an owner living in another
state.
In The D. M. French, 1 Low. 43, 45, the learned judge for the dis-
trict of Massachusetts intimated that, with the modes of communica-
tion now within reach of every one, lienholders might be required to
foUow a vessel into another state, at the risk of loaing their privilège,
though he was not called upon to décide the question.
Where a veaael leaves a port of repair upon a long voyage, and
does not return, and, in the mean-time, it is impossible, or very diffi-
cult, to ascertain her whereabouts, there is certainly reason for saying
THE JOSEPH W. GOULD. 786
that a créditer would not be chargeable with lâches, as against inno-
cent parties, even by the lapse of several years, if he had reasonable
expectation of her return. But I find it quite impossible to say tiat,
as a universal rule, the creditor may wait until her return to the port
of repair, even though that be her home port, or a port which she has
been in the habit of frequenting, without losing the benefit of his lien.
A rule of this kind would be particularly inéquitable upon the lakes,
where the arrivai and departure of vessels at ail lake ports, from
Chicago to Ogdensburgh, are noticed in the principal daily papers, and
for four months in the year the entire shipping of the lakes is laid
up by the ice to await the opening of navigation. I think that a rea-
sonable opportunity to enforce a lien is given, within the meaning of
the law, -whenever the creditor is able, by the exercise of reasonable
diligence, to ascertain the whereabouts of the debtor vessel. Each
case must be governed largely by its own circumstances.
In the case under considération, libelants were not only informed
of the sale very soon after it took place, but of the removal of the
vessel to the lower lakes, and were notified by Buckley in the spring
of 1882, that he should pay nothing more upon the bill, as the Malta
was not as represented, and that they must look to the Johnson for
the residue. They took no steps, however, even to notify the pur-
chasers of the claim, until December of that year, when it was for-
warded to Détroit for collection and the vessel seized within 10 days
thereafter. There is nothing in tke testimony to show that the ves-
sel might not hâve been arrested during the season of 1881, or at
least in the winter of 1881-82. It is true that no damage was ocea-
sioned to the présent owner by the libelants' delay after the sale took
place, but this objection was disposed of in the case of The Théo-
dore Perry, 8 Cent. Law J. 191, and it is unnecessary to repeat what
was said upon the subject upon that occasion.
Under the circumstances of this case, it seems to me entirely clear
that the libelants were guilty of lâches, and that the libel must be dis-
missed.
The Joseph W. Gould.
{District Court, W. D. Pennsylvania. February 4, 1884.)
1. Collision— Négligence — Evidence.
In a case of collision the libelant must show the alleged négligence by a fair
prépondérance oî the évidence.
2. Same — RuNNiNG ON Ohio Rivbr.
Kunning on the Ohio river in a fog is not négligence per se.
i, Saùe — Mutual Fault — Apportionment of Camages.
Bpats so running should observe great care and caution ; but, this being done,
the court will not apportion the damages in case of a collision upon the ground
that the colliding boats were both in fault in running in a fog. Having vol-
untarily encountered the hazard of the navigation the loss must lie where it
falls in the absence of proof of négligence.
v.l9,no.lO— 50
786 ÏEDEEAL EEPORTEB.
In Admiralty. ' ,
Morton Hunter, for libelants.
D. T. Watson and F. F. Sneathen, for respondents.
AcHESoN, J. Tbis a suit by the owners of tbe steam-propellor
Stella MoCloskey againat the steam tow-boat Joseph W. Gould, to
recover damages sustained by tbe first-named vessel in a collision on
the morning of Pebruary 2, 1881. At the time of the occurrence
both boats were proceeding on short trips down the Ohio river. They
left the Pittsburgh wharf at nearly the same time, between 9 and 10
o'clock A. M., the McCloskey turning out first and being somewhat in
advance of the Gould. When the latter was at the Point bridge the
former was at Painter's mill, or a little above. Painter's mill is
about 460 yards, and the place of collision ia some 840 yards, below
the bridge. When the boats started out there was a "frost fog" upon
the surface of the river above the bridge, rising a few feet only above
the water, and not interfering with navigation. . But at or about
Painter's mill the boats encountered a dense fog which came out of
Saw-Mill run, and it was while they were in this "fog-bank," as the
witnesaes term it, and hidden from each other, tbat the collision oe-
cured.
The boats were proceeding to pointa on opposite sides of the river.
The destination of the Stella McCloskey was Manchester, on the north
side, and therefore it -«fas necessary for her to cross the river, followihg
the channel, which hère runs in a quartering direction from the south
towards the north shore. Sbe was in the act of crossing when the Gould
ran against her starboard side, about one-third forward of her stern,
The effect of the collision was to upset the Stella McCloskey or overturA
her-on her larboard side. Her pilot says she was "shoved over."
She sank almost instantly. The saddest thing connected with the
disaster was the drowning of her fireman, William Sait. The pilot
and engineer, the only other persons upon her, were thrown or jumped
into the river, and were picked up by the Gould. So sudden was the
mishap that the pilot of the Stella McCloskey did not see the Gould
until he was in the water, and the first notice her engineer had of the
impendingcalamity was when he saw "the cabin break, and the nosing
of a boat at the glass sky-light just where the cabin broke in." The
pilot of the Gould testifies that when he discovered the Stella Mc-
Closkey she was not further away than 35 to 40 feet. He states that
he instantly rang his backing bell, and the proof is that the order to
back was promptly obeyed. Indeed, the engineer of the Stella Mci
Closkey, speaking, as I understand him, of what he observed imme-
diately after the collision, says: "When I came out of the cabin or
engine room I suppose the Gould was about 25 or 30 feet away from
us and abreast of us. She had been backing, and her wheel was just
stopping." Later on tha,t day the sunken boat was raised by crane-
boats, the Gould staying by and assisting. The injuries to the Stella
McCloskey, as the direct resuit of the collision, were found to be thèse.
THE JOSEPH W. aOOIiD. 787
viz : About three feet of her nosing, which was two or two and a half
inches thick, was torn off the guard, but the latter was not broken;
and there was a break at the corner of the cabin, a foot below the
roof, eight or ten inches wide, •which, a witness stâtes, "appeared to
hâve been made by a sliding lick from the guard of another boat."
The évidence does not diselose the dimensions of either vessel, but it
appears that the Stella McCloskey was of considerably lighter burden
tfaan the other, and was much the smaller boat. She was originally
built for a "pleasure boat," but had been changed into a regular
passenger boat.
The seventh rule, for the government of pilots on the western
rivers, provides that "when a steamer is running in a fog or thick
weather, it shall be the duty of the pilot to sound his steam-whistle
at intervais not exceeding one minute." Each of the pilots testifies
that he obeyed this rule, and each is corroborated, to some extent,
by other witnesses. The testimony, corroborative of the pilot of the
Grould, is especially strong, and, in part, cornes from witnesses who
were on shore. True, the witnesses who were on the respective boats
say they did not hear any whistle but their own. The explanation
of this, however, may possibly be that the pilot-houses and engine-
rooms were closed, the day being extremely cold, and that the
whistles of the two boats were nearly simultaneous.
In respect to the speed of the Gould, the testimony of her pilot is
that she proceeded under a slow bell, and with great caution. To the
same effect testifies the engineer ; and of this there is some other di-
rect corroborative testimony. Moreover, the circumstantial évidence
that the Gould was so running is very strong. The wounds which
the Stella McCloskey received indieate that the Gould had little head-
way. And then, again, the witnesses on both sides ail say that when
the boats corne together they felt no jar, and heard no crash to de-
note a collision. There is no direct évidence in the case that the
Gould was running at an improper rate of speed. Mr. Neeld, indeed,
testifies that a boat leaving the Point bridge at the same time an-
other leaves Painter's mill, and overtaking the latter boat at the place
of this collision, wonld hâve to run twice as fast; and the pilot of the
Gould states that she ran 2,950 feet while the Stella McCloskey ran
1,650 feet; but this does not necessarily iniply imdue speed on the
part of the Gould, and much less would it justify such conclusion in
the face of the positive testimony to the contrary.
In a case of collision the libelant must show the alleged négligence
by a fair prépondérance of the évidence; otherwise the libel will be
dismissed- Èutterfield v. Boyd, 4 Blatchf. 356; The Albert Mason, 2
Fed. Eep. 821; The Edwin H. Webster, 18 Fed. Eep. 724. Apply-
ing this rule herie, there must be a decree dismissing the libel unless,
indeed, the Gould is to be adjudged guilty of négligence in running at
ail in the fog. But a charge of onlpability in that regard would come
with an ill-graçe. from the Stella MoÇloske^, for she led the way into
788 FEDEBAL BEFOfilEB.
the obscurity of the fog, and oertainly was equally blameworthy with
the Gould, if either herein were censurable. But running in a fog
is not négligence per se. The above-quoted rule, prescribed for the
government of pilots, régulâtes such running, and, by implication,
sanctions it. True, great care and caution should be observed under
such circumstances ; but, this being done, the court, in case of a col-
lision, will not apportion the damages upon the ground that the col-
liding boats were both in fault in running in a fog. The Sylph, i
Blatchf. 24. Having voluntarily encountered the hazard of the nav-
igation, the loss must lie where it f ails, in the absence of proof of nég-
ligence. Id.
Let a decree be drawu dismissing the libel, with costs.
Thb Alioia a. Washeuen, etc.
The B. K. Washbuen, etc.
(DUfrict Court, 8. D. New York. February 21, 1884.)
1. Collision — Steam-Tug with Tow— Rounding Bbïnd.
A steara-tug with a tow, in going around a dangerous bend, where the tîde
sets strongly across the river, is not entitled, as a matter of right, to occupy the
full half of the river on the right-hand side.
2. SAME — DUTT DP SCHOONEK BbCALMB».
A schooner rounding such a bend in the opposite direction, becalmed or nearly
80, is bound to make use of the customary means of oars, or a small beat ahead,,
to keep some steerage way in order to avoid collision with other vessels.
3. Bamb— Case Statbd.
"Where the steam-tug W., with a tow on a hawser, was proceeding northward
around West Point in the Hudson river, and met several sailing vessels be-
calmed, floating down with the tide, a short distance apart, and the W., having
overtaken another tow a little below West Point, passed it on the left instead
of the right, as she raight hâve done, thereby going round the bend nearly in
the middie of the river, when there was abundant room to go to the eastward ;
and the schooner H., nearly becalmed, drifted down around the bend with the
tide, which there set strongly to the eastward across the river, carrying the H.
against the W.'s tow, and the schooner used no oars or small boat, as she might
hâve done, to give her some headway and aid in avoiding the tow: héld, that
both were in fault,— the tug for proceeding un necessarilytowards the middie of
the river, knowing the strong set of the tide, and the danger to sailing vessels
becalmed; and the schooner, for not using customary means to aid in avoiding
the collision.
Collision.
Benedict, Taft â Benedîct, for libelant.
P. Cantine, for respondent.
Bbown, J. On the night of March 31, 1880, the libelant's schooner
Maria E. Hearn, of about 130 tons burden, with a cargo of 27,000
bricks, came into collision with an ioe-barge in tow of the A. A. Wash-
burn, on the Hudson river, off the West Point light, and shortly after
THE AlilCIA A. WABHBUBN. 789
capsized and sank. The night was cloudy and dark, but not thick;
the wind light, from the north-east; the tide about half ebb, and
strong. The Washburn, a powerful steam-tug, was coming up the
river, making against the tide about six miles per hour by land,
having two ice barges in to\? upon a hawser about 450 feet long.
When a little way below the West Point light she overtook the steam-
tug McDonald, with a large and heavy tow upon a hawser about 500
feet long, making by land about three miles per hour. The Wash-
burn, with her tow, passed on the west side of the McDonald, between
Boat-house Point and West Point. The ice-barge on the Washburn's
starboard side, in pasaing, rubbed along against the fendera on the
port side of the McDonald, being set against her, doubtless, by the
ebb tide, Aîfrhich, in passing around and below West Point, sweeps
strongly to the eastward. While the Washburn and her tow were
thus passing the McDonald and her tow, three schooners and a sloop
were observed coming down the bend, between Magazine Point and
West Point, in the following order : the Dubois, the Hearn, the Voor-
hees, and the sloop, estimated to be respectively from 400 to 500 feet
apart, and nearly in line. About the same time the Albany night
boat, the St. John, or the Drew, came down past Magazine Point, and
Bounded two whistles, to which the Washburn at once replied with
two. AU the sailing vessels had.their sails set. T^e witnesses from
them testify that they had not wind enough, between Magazine Point
and West Point, to give them steerage way; that they drifted down
with the tide, and got wind again after passing West Point. The
Dubois passed on the west side of the Washburn and her tow, using
an oar at the bows to keep the schooner's head to the westward, but
passing so near that they apprehended collision. The witnesses from
the Dubois testified that when she passed the tow of the Washburn
that tow was about 75 feet distant to the eastward, and that the
McDonald was then abreast of the Washburn's tow. The pilot of the
McDonald testifies that when this tow was abreast of him he was
about due east from the light, and that the collision between the
Hearn and the tow was when the latter had gone about 200 feet
ahead of him. This fixes very approximately the place of collision,
except as respects the distance from the shore, and shows that the
Washburn, which was some 450 feet ahead of the place of collision,
must hâve been headed well round towards the westward in the bend.
The witnesses from the Hearn testify that they came past Magazine
Point nearly in the middle of the river ; that they drifted with the set
of the tide to within 200 feet of the West Point shore; and that, as
they approached the Washburn and her tow, they put their boom to
port, and struck the tow of the Washburn when not over 200 feet
from the west shore. The main sheet of the Hearn got oaught in the
samson's-post of the barge, which held herfastfor a short time; but,
being soon released, the schooner drifted downward and to the east-
ward, upon and across the port hawser of the McDonald's tow, and
790 FEDEBAL . BEPOBTEB.
tbere filled, capsized, and sank. The Voorhees also passed on the west
side of the Washburn, being headed in towards the westward, by
means of an oar. Her witnesses testify that she narrowly escaped
collision with the Washburn's tow, though going within about 30
feet of the rocks on the western shore.* The sloop passed to the east
of the Washburn andof the McDonald; and the St. John, or Drew,
having cheeked her speed, passed on the east side of ail the other
boats, the sloop going between the steamer and the McDonald at an
estimated distance of about 100 feet from each.
The case has been elaborately considered by counsel on both sides.
For the claimantsit is urged that no liability exists on their part; be-
cause, as they claim, the évidence shows that they were not on the
westerly half of the river; and that the collision eould hâve been
avoided had the Hearn used an bar, or a small boat rowing ahead, as
they allège is customary with sailing vessels becalmed. , Very little
reliance is to be placed upon the extremely différent estimâtes of the
distances of the varions boats from shore. Untrustworthy as such
estimâtes at night always are, they are especially so in this case,
when the night was so dark, and the testimony is given several yeara
after the occurrence. Ail that can be done in such cases is to en-
deavor to arrive at the most probable solution of the case from other
circumstances leps liable to great mistake.
Without discussing further the numerous points of différence in the
testimony, the following facts seem to me sustained by the évidence
and the probabilities Of the case: (1) That the McDonald was going
up not far from the middle of the iriver. (2) That there was room
for the Washburn to pass her on the east side had she wished to do
80. This I consider to be clearly established by the subséquent pas-
sage of the sloop and of the St. John to the eastward. (3) That the
Washburn's tow rubbed against the McDonald in passing on the west
side of the latter ; and that her port boat was consequently not over
100 feet to the west of the McDonald. (4) That the collision be-
tween the Hearn and the Washburn's tow was some 200 feet ahead
and somewhat to the westward of the McDonald, as is shown by the
fact that the Hearn, after the collision, drifted with the easterly set
of the tide down and across the McDonald's port hawser. (5) That
there was not sufficient wind between Magazine Point and West Point
to give steerage way to the sailing vessels; and that in such circum-
stances it was customary for sailing vessels to make use of an oar at
the bows, or of a row-boat in front, in order to keep steerage-way and
to guide their course.
The easterly set of the ebb-tide in coming aronnd West Point ; the
liability to meet sailing vessels coming from above, as well as their
liability to be becalmed between Magazine and West Points; and the
risk of meeting tows coming up, — are familiar facts, presumably known
to ail the parties. The especial danger arising from thèse circum-
stances in going around West Point bend, ffbere vessels could not be
THE ALIOU A. WASHBU8N. 791
seen to eaoli other more than a mile distant, imposed upon both par-
ties alike the obligation of acting with a prudence and caution com-
mensurate with the knowil danger. The captain of the McDonald
testified that between Boat-house Point and West Point "was no place
for one tow to pass another," on account of the dangers incident to the
place. ■ This case, I think, proves that he is right. I hâve no doubt
that the cause of the collision was the Heam's drifting with the tide
against the tow of the Washburn in going around the bend. A
steamer, in going around such a bend, where a sailing vessel is likely
to be becalmed, and where the tide has so strong a set across the river,
is bound to keep well out of the way, when there is nothing to prevent
her doing so, and thus give plenty of room for beealmed and drifting
vessels to pass, without danger of collision. There is no rule which
allows to a steamer, in such a situation, the full half of the river; nor
is it any sufQcient défense that she was not on the westerly side,
where, from the peculiar set of the tide, the westerly half of the river
is not sufficient for sailing vessels, becalmed and drifting, to pass
around such a bend with safety. I am satisfied, therefore, that the
Washburn should be held in fault because she did not go nearer to
the easterly shore of the river, where there was abundant room for
her to go. The McDonald herself was further to the westward than
was necessary ; and tows overtaking each other in that vicinity, un-
less they are sailing to the extrême right of the river, should forbear
attempting to pass each other until they hâve gone beyond the points
of danger. '
The Hearn, however, cannot be held blameless. There was no rea-
son why she should not hâve used oars at her bows, so as to give her
some headway, or change her heading, as the other sohooners did;
or else hâve made use of a row-boat, as was proved to be frequently
done by other vessels for the same purposes; no reason, I say, ex-
cept, possibly, the f act that she was tardy in discovering the approaeh
of the tug and tow, and her own danger. The évidence is very strong
to the elïect that her captain did not see the Washburn at ail until
within 150 feet of her. He states this twiee explicitly ; although the
lookout says that he gave him notice of it at a much greater distance.
If the captain is right, his knowledge of the Washburn's approaeh
was, doubtless, toc late to enable him to accomplish much by pars or
a row-boat. But that would only convict him of another fault, yiz.,
that of not keeping a proper lookout; and upon his own testimony I
strongly suspect that that was the fact. Considering the known
danger from tugs that might be coming up around that bend while
he was nearly becalmed, there is no excuse for his not keeping.a sharp
lookout, or not being fuUy prepared for the instant use of oars or a
boat, if any danger should be descried; and eithel: of thèse .might
hâve been used effectively if the Washburn was seen at the distance
;stated- by the lookout. From the fact that ail the vessels made use
of a change in the position of their sails, eyidently for the purpose of
T92 TEDEBAIi REPORTER,
making some change in their courses, and particularly from the tes-
timony of the captain of the sloop in this regard, I think there is
some doubt whether the sailing vessels in the reach between Maga-
zine and West Points were in fact totally becalmed, and whether they
did not hâve at least some little headway, though it was doubtlesa
slight. The évidence, I think, indicates that the captain of the Hearn
was tardy in the change of his boom. In the various particulars
above stated it seems to me that he did not act with the watchfuhiess,
alertness, and prudence which the situation reasonably demanded of
him, and which, if observed, might hâve enabled him to avoid the
collision; and that the Hearn must, therefore, be held in fault.
As I must find the collision te hâve arisen, therefore, through fault
on the part of both vessels, the damages must be divided, and an or-
der of référence may be taken to compute the amount.
The Ella B.
The Bussell Sage.
{Disiriet Court, N. D. New York. Maroh, 1884.)
1. NESiirGENOB — SuDDEN Emergenct.
Oae who, in the confusion of a sudden emergency caiised by anotlier's fault,
fails to adopt the most prudent measures of safety, is sot chargeable with nég-
ligence on that account.
2. Bame— Collision of Vessels.
Accordingly, where a tug-boat was comîng down the stream with a caiial-
boat in tow, and a steam-propeller, whose offlcers might easily hâve seen the
tug, suddenly and without warning swung ont into the stream, thus rendering
a collision imminent, and the master of the tug endeavored to pass by in order
to escape the danger, held, that even though some other course might liave
been in fact more prudent, the owner of the tug was not answerable for any
part of the damage sustained by the canal-boat when struck by the propeller.
In Admiralty.
Benjamin H. Williams, for libelants.
Joseph V. Seaver, for the Ella B.
Josiah Cook, for the Eussell Sage.
CoxE, J. On the morning of June 12, 1883, the steam-propeller
Eussell Sage was lying in the Buffalo river at a dock on the north
side near the foot of Washingtoû street, her bow being headed up
stream. She is 233 feet in length, 33 feet beam, and has a carry-
ing capacity of 1,500 tons. Directly in front of her was a small,
low scow, used in pile-driving, from 15 to 20 feet in width. With
this exception there was nothing to intercept the view for a thousand
ïeet and more up the river, and as the scow was only half the width
of the propeller the view from the starboard bow of the latter was ab-
THB EIiItA B. 793
solutely unobstructed. Diagonally opposite the Sage, and Ibetween
200 and 300 feet further up the stream, three beats, aggregating 63
feet in width, were lying abreast at Prench's dock. In thèse circum-
stances the Ella B., a small tug, 35 feet in length and 10 8-10 feet
beam, having the canal-boat Henry L. Schutt in tow, started from a
slip on the north side of the river, about a thousand feet above the
point where the Sage was lying, and proceeded down the river, keep-
ing very near the center. When the tug was 100 or 150 feet from
the propeller the latter oast off ber head lines and swung her bow
into the stream. The tug put her wheel to starboard and opened
her throttle-valve hoping to pass in safety. In this she was unsuc-
cessful, for the propeller's stem struck the starboard bow of the canal-
boat causing the damage for which this action is brought. The river
t the point where the collision oecurred is 221 feet wide. The wit-
esses, with great unanimity, agrée that at the time of the accident
the tug and tow were about in the center of the river, rather nearer
the south than the north side, It foUows, therefore, that the propel-
ler in order to hâve reached the canal-boat must hâve swung out 110
feet or more. The proof shows no faalt on the part of the canal-
boat. Indeed, it was virtually conceded on the argument that the
libelants are entitled to recover, but each of the libeled vessels con-
tended that the accident oecurred solely by reason of the négligence
of the other, The controversy is, then, between the Eussell Sage and
the Ella B., and the court is called upon to décide, if it is found that
the accident was not the resuit of their joint négligence, which of the
two was responsible therefor.
There can be no doubt as to the négligence of the Eussell Sage.
There was no difficulty in seeing the tug the moment she entered
the river. The Sage knew, or ought to hâve known, that the tug, not
a powerful one, was coming down the river with a loaded canal-boat,
and yet, when they were in close proximity, she swung out so that
her stem was nearly, if not quite, in the center of the stream. Had
she waited a few moments the tug and tow would bave passed by and
ail danger of collision would bave been averted. Sbe had no look-
out, and the great weight of testimony is to the effect that she gave
no signal. In any view it was unnecessary to swing out so far. Her
object was to prooeed further up the river, and had she adopted the
usual course there would hâve been ample room between her bow
and the center of the stream for the tug and tow to pass in safety.
Without apparently taking any précaution to guard against danger,
with an xitter recklessness as to conséquences, the Sage suddenly and
unexpectedly let go her head-lines and swung herself half way across
a narrow channel directly in the track of an approaching vessel. Ail
this was négligence for which she must be held responsible.
Eegarding the Ella B. there is more doubt. The impression enter-
tained at the trial was that her conduct contributed to the accident,
but upon a more deliberate and careful examination a différent coo-
794 FEDBBAli BEPOETER.
clnsion is reaohed. In determining this question the previous habits
of her master should not be considered, in the absence of proof Con-
necting them with the collision or with some dereliotion of duty on
that occasion. The tug was passing down the river in a careful and
prudent manner. No fault as to her rate of speed, her position in
the center of the river, or the management of the tow is suggested
untilehe was within about 160 feet from the propeller. She then
found herself confronted with sudden and imminent péril. Three
conrses were open to her; she could reverse, and by going along-side,
endeavor to stop the canal-boat; she could sheer off and attempt to
haul the canal-boat to the south side of the stream, or she could do
as she actually did, make an effort to pass. Each of thèse courses
was attended with danger. The tow-Iine was about 16 feet or there-
abouts in length. In backing with so short a line it is not impossi-
ble that the boat might hâve been forced into a position even more
hazardous than the one she actually assumed. So, too, in sheer-
ing ofif, the canal-boat might hâve been so placed that she would
hâve been struck amid-ships or near the stern where the blow would
hâve been attended with far more serious results. The tug attempted
to go olear by turning towards the south and accelerating her speed.
In deciding upon this course her master had a right to assume that
the Sage would swing out only the usual distance, which is 40 or 50
feet. He could not foresee, and was not required to do so, that the
Sage would occupy half the channel in executing an ordinary maneu*
ver. It is not necessary to décide that he took the wisest and safest
course, for the reaaon that he had not time or opportunity to enter
into a nice calculation as to which of the dangers which confronted
him was the leaet to be apprehended. He was placed in a position
of extrême péril by the sudden and extraordinary action of the Sage.
If, in such an exigency, attended as it must hâve been with excite-
ment and appréhension, he failed to give the most judicious orders
or take the wisest course, the failure cannot be imputed to him, but
to the vessel which placed him in this hazardous predicament. The
conclusion, therefore, reached is that the Sage is solely responsible
for the accident.
There should be a decree for the libelants, with costs, and a référ-
ence to a oommissioner to ascertain and report the amount of the
damage sustained. As against the Ella B. the libel muât be dis-
missed, but without costs.
THK OOh, ADAMS. . 795
The Col. Adams, etc.
{Distriet Court, 8. D. New York. March 22, 1884.)
1. Ralvaqb— Vessel and Cargo.
Where a vessel and cargo, owned hf differeat owners, are libeled for the re-
covery of salvage, and the différent owners file separate answers, olaims, and
bonds, and one of tliem claiina an apportionment of the sulvage, and a siim in
gross is agreed upon between tlie parties, it is tlie duty of the court to appor-
tion the amount awarded upon the interests of the diû'ereat owners ; it would
be error to award a gross sum which inight be collected wholly ont of the prop-
erty of either.
2. SaMB— A.PPOBTIONMENT. <
Where in siich a cause ail the iscnes are referred to a commissioner to hear
and détermine, held, such apportionment is a part of the issues referred ; and
the commiasioner's report having been flled without apportionment, it was sent
back on exceptions that such apportionment might be madeupon the évidence
of the respective values of the vessel and cargo.
S. SAMB — AVBRAGE BoND.
If, as alleged, an average bond bas been entered into between the parties,
afEecting the distribution of the salvage, the apportionment made in this ac-
tion will be without préjudice to the covenants and obligations of the bond.
In Aœiralty.
Jas. K. Hill, Wing & Shoudy, for libelant.
Butler, Stillman é Hubbard and Wm. Mynderse, for cargo.
Owen é Gray, for The Col. Adams.
Brown, J. The libel in this case was flled tb reeover salvage against
the vessel, freight, and cargo, ail of which were attached. The ves-
sel and cargo were owned by separate owners, who appeared sepa-
rately, filed separate claims, and gave separate bonds for their respect-
ive interests. The claimants of the cargo, in their answer, demanded
that, in the event of the libelant's recovery, the amount of recovery
should be apportioned upon the cargo, vessel, and freight. By consent,
the action was referred to a commissioner "to hear and détermine
the whole issue, subject to exceptions upon his report," At the close
of the libelant's proofs, the claimants of the cargo and the claimants
of the vessel and freight united in an oflfer of $8,000, which the libel-
ants accepted, and which the commissioner reports as the whole sal-
vage allowed. The claimants of the cargo demanded of the com-
missioner that he should apportion the amount properly chargeable
against the cargo; and to that end they gave évidence of the values
of the vessel, freight, and cargo. The claimants of the vessel objected
to such apportionment, and the commissioner ruled it not within the
issue referred to him. The former, therefore, gave no évidence of
the relative values of vessel and cargo, and the report contains no
apportionment of the amount of salvage to be paid by either.
Upon the hearing of the exceptions, the claimant of the cargo states
that an average bond bas been entered into between the owners of
the vessel and cargo, and that the apportionment should, therefore, be
left to be adjustëd under that bond. The bond, however, was not
796 FBDEBAL BEPORTEB.
put in évidence, and the claimant of the cargo insista that tlie re-
port is defective for want of apportionment. In a suit for salvage,
where there are separate owners of the vessel and cargo libeled, wiio
appear separately to défend their separate interests, the action is es-
sentially for a several and separate demand against the property of
each owner. It would be error, therefore, in the court to treat thèse
separate interests as joint and Consolidated, despite the separate an-
swers and daims demanding the récognition of the separate rights of
each, or to render a decree for the whole salvage in such a form as to
make it collectible whoUy from either. Under such several claims
and pleadings the court is bound to make the apportionment upon
the respective separate interests. This was long since clearly an-
nounced by the suprême court in the case of Stratton v. Jarvis, 8 Pet.
4, where Stoby, J., says, (p. 11:)
"It is true that the salvage service was, in one sensé, entire; but it cer-
tainly cannot be deemed entire for the purpose of founding a right against ail
the claimants jointly, so as to make them ail jointly responsible for the whole
salvage. On the contrary, each claimant is responsible only for the salvage
properly due and chargeable on the gross proceeds or sales of his own prop-
erty, pro rata. It would otherwise follow that the property of one claimant
might be made chargeable with the payment of the whole salvage, which
would be against the clearest principles of law on this subject."
The same question has a direct relation to the right of appeal of
the claimants to the suprême court, as dépendent upon the amount
involved, since this right is to be determined aecording to the amount
chargeable against each severally. Stratton v. Jarvis, supra; The
Gonnemara, 103 U. S. 754; Ex parte Baltimore de 0. R. Co. 106 U. S.
5; S. C. 1 Sup. et. Eep. 35, and cases there cited. An apportion-
ment in some form has been the ordinary practice in such cases, and
is clearly a substantial right, which it would be error to disregard.
TheMinnie Miller, 6 Ben. IIY; The Cyclone, 16 Fed. Eep. 486, 489.
The apportionment of the salvage was, therefore, a'material part of
the issue referred to the commissioner; and as under his ruiing the
owner of the vessel gave no évidence of value, the case must be sent
back that an apportionment may be made upon such proofs as the
parties may offer. If an average bond has been entered into be-
tween the parties, any apportionment ordered by the court in this ac-
tion would be without préjudice to the covenants and obligations of
such a bond, so far as the subject of salvage is covered by it. An
order may be entered in aocordance herewith.
THB 0UBTI8 FABE. Td7
The Cubtis Pahk.*
'District Court, E. D. New Tork. Februaiy 19, 1884.)
Collision ok Erik Camal — Rulb of the Road— Burdbn of Pboop.
A loaded boat,tlie B. , bound east on the Brie canal, towed by a cable-boat, met
a light boat.the C. P. ,while turning a bend where the cable-boat must keep close
to the inBidé of the turn, which was the tow-path side. The 0. P. passed the
cable-boat on the outside, and then, inaccordancewiththeruleof the canal, at-
tempted to regain the tow-path side bypassing between the cable-boat and ,the
B., over the tow-Iine of the cable-boat, and in so doing was struck by the B.
In an action against the 0. P. for the damage done the R.,heid, that the O. P.,
having taken a course in accordance with the rule of the canal, and the B.
having done otherwise, the burden was on the B. to excuse her omission to
conform to the rule ; and that, as the B. failed to do so upon the évidence,
her libel must be dismissed.
In Admiralty.
J. M. Mvlchdhey, lor liDejam.
E. G. Davis, for claimant.
Benediot, J. This is an action to recover for damages done to the
canal-boat B. M. Blazier in a collision with the canal-boat Curtis
Park, on the Erie canal, at Middleport bend. The Blazier was a
loaded boat, bound east, and beiug towed by a cable-boat, No. 8, The
Curtis Park was a light boat, bound west. The Curtis Park met the
cable-boat and her tow just as the cable-boat was turning the bend,
and when, owing to the position of the cable, the cable-boat must
necessarily keep close to the inside side of the turn, which was there
the tow-path side of the canal, Accordingly, the Curtis Park passed
the cable-boat on the outside, or heel-path side. It was then her
right, according to the rule of the canal, to regain the tow-path side
by passing between the cable-boat and the Blazier, thus going over
the tow-line of the cable-boat, the same being slackened for that
purpose. This course was taken by the Curtis Park; but before she
reached the tow-path she was struck by the Blazier. The collision
would not bave occured had not the Blazier, instead of keeping to-
wards the berme bank, hauled in towards the tow-path. Her excuse
for doing this is that she supposed the Curtis Park would go outside
of her, as she had gone outside of the cable-boat. The Curtis Park
having taken a course in accordance with the rule of the canal, and
the Blazier having done otherwise, the burden is upon the libelant to
excuse her omission to conform to the rule.
The assertion in behalf of the Blazier' is that the Curtis Park at
first hauled to'the berme bank, with the intention of passing on the
outside, thereby leading the Blazier to haul towards the tow-path side,
and afterwards abandoned this intention by direction of the master of
the Curtis Park, who came on deck as the boats were passing and
dlrected his steetsman to take the tow-path when it was too late to do
> Beported by R. D. & Wylljs Benedict, of the New York bar.
Î98 ÏBDBEAL EEpOHTEB,
80 wîthout collision. The évidence bas failed to satisfy me cf the
truth of this assertion. Ttiere is very positive testimony from several
witnesses that the Curtis Park at no time took the berme bank, but
passed along the cable-boat close by; and the fact stated by the
libelant's witnesses to show that the Curtis Park would be likely to
take the berme bank, namely, that a strong wind was blowing off the
tow-path, rendering it impossible for a light boat to regain the tow-
path in the manner attempted by the Curtis Park, is contradicted by
th^ libel itself, where it is expressly stated that the wind was light.
Upon the évidence as it stands, I am unable to find that the libel-
ant's boat bas proved her excuse for being where she was when the
collision occurred, she then being inside of the middle of the canal,
instead of nearer to the berme bank, and accordingly I must dismiss
the libel, with costs.
The Daunïlbss.-
[District Oonrt, E. D. New ïork, December 31, 1883.)
Permission to Bxtbaot Guano — Riqhts thebebt Acquired.
One J. obtained permission from the govci-nment of Brazil to extract a cargo
of guano or minerai phosphate from R. island, and sent out a vessel lo get it,
but the voyage was broken up. W., learning of this, went to the island with
his vessel and obtained the cargo by virtue of a subséquent permission obtained
by W. hiraself. J. flled a libel against W.'b vessel and cargo, claiming as
owner to recover the cargo obtained by W. Ileld, that J.'s right of property
could only attaoh to what phosphate be might acquire possession of by extract-
ing it and loading it upon his vessel under the permit issued to him, and that,
in the absence of proof of false représentations on W.'s part in obtaiuing his
permission that he was acting as J.'s agent, the libel must be dismissed.
In Admiralty.
Dan. Marvin, for libelant.
Goodrich, Deady é Platt, for claimant.
Bbnbdiot, j. It is conceded on the part of the libelant that there
can be no recovery in this action unless the libelant's ownership of
the cargo proceeded against bas been proved. This has not been
done. It has been shown that the libelant, one Jewett, had obtained
from the government of Brazil permission to extract, for his own use,
from Kat island, a cargo of guano or minerai phosphate. He sent
out the brig Katie to obtain such cargo, but she was condemned in
Eio Grande do Sul, and her voyage broken up. At the time of the
condemnation of the Katie, Williams, the claimant in this action,
learned of the destination of the Katie and the object of her voyage,
and, acting upon such information, proceeded to Èat island with his
vessel, the Dauntless, and there obtained the cargo now proceeded
ï Reported by R, D. & Wyllys Benedict, of the New York bar.
THE 3i TV. DBNNIS. T99
against. But this cargo was ùot obtained by virtue of the permit
that had been issued to the libelant, but by virtue of a subséquent
permission whieh Williams obtained for himself. By the permission
issued to the libelant, the libelant acquired no interest in any of the
phosphate on Eat island. His right of property could only attach to
what he might acquire possession of by extracting it aûd loading it
upon his vessel under the permit issued to him. I am, theref ore, un-
aiole to see any ground upon which to hold the libelant to be ovmer
of this cargo, which was not extraoted by him and was never in his
possession. If this cargo had been obtained by Williams through a
false représentation that in applying for the permission that was
given -to him he was acting in behalf of the libelant, and he had been
allowed to take this cargo as the agent of the libelant, and not for
himself, his acts could hâve been adopted by the libelant, and in such
case it might not be open to Williams to deny the libelant's owner-
ship of cargo so obtained. But no such case has been proved. The
most that can be said is that the circumstances proved are calculated
to cast suspicion upon the account given by Williams in regard to
his acts in obtadning this cargo. It is not enough, however, in a case
like this, to raise suspicion. The libelant's ownership must be proved.
That not having beçn done, the action must fail.
Let a decree be entered dismissing the libel, with costs.
See opinion on argument of exceptions to libel in same case. Tlie Daunt-
less, 7 FED. REF. 366.
The J. W. Dennis.
(District Court, N. D. New York. Maroh 28, 1884.)
Rbtainihg of Vbssel bt a Bhip-Keepeb.
A. vessel which has been detained by a ship-keeper, pending a coiitroversy,
must be delivered up to her owner immediately upon the settlement of the suit.
The marshal will not be justifled in employing a ship-keeper after the suit
has been settled, merely because a l'ormal order of discontinuance has not been
entered.
In Admiralty.
This is a motion in the nature of an appeal from the taxation of
the marshal's bill of costs, by the clerk. The marshal employed a
ship-keeper at $2.50 per day to take charge of the libeled vessel. The
clerk allowed the bill at $1,75 per day. Yarious affidavits were sub-
mitted by the parties. Some to the effect that the amount wastoo
high; othera that it was a very reasonable charge for the work done.;
It appears from the affidavits that the oontroversy between the parties
has been settled, though no formai order to that eflfect has been en-
tered. It also appears that since the settlement and the taxation by
800 rSOEBAL BBPOBTBB^
tbe clerk as aforesaid the ship-keeper bas retained possession of thd
vessel and bas demanded pay for bis services.
George N. Loveridge, for motion.
James A. Murray, opposed.
CoxE, J. I bave read witb care ail of tbe aflBdavits and papers
submitted in tbis case and bave reached tbe conclusion tbat tbe bill
of costs and disbursements as taxed by tbe clerk, Pebruary 28, 1884,
cannot witb propriety be reduced. As tbe stipulation limits tbe in-
quiry to tbe items of tbat bill, I express no opinion upon tbe question
as to the rigbt of tbe sbip-keeper to compensation since tbat day.
Tbere sbould be no delay, bowever, if tbe controversy is settled, in
discontinuing tbe action and restoring tbe vessel to ber proper owner.
Thb Ontonagon.
(Distriet Court, If. D. New York. March, 1884.)
OoBTS — LiBBii IN Rbm— Settlembnt.
The respondent in a suit for seamen's wages cannot avoid the payment of
costs by settling with the libelant witbout the knowledge of his proctors.
Cook dt Fitzgerald, for libelant.
Williams ê Potter, for respondent.
CoxB, J. Tbis is a libelfor seamen's wages. The simple question
is: can tbe respondent by a settlement witb tbe libelant avoid tbe
payment of costs ? I am olearly of tbe opinion tbat be cannot. Tbe
libelant was compelled by tbe respondent's refusai to pay bis wages
to commence tbis suit. Costs and disbursements were incurred, due
not only to tbe proctors, but to tbe marsbal and clerk. By paying
the libelant the respondent admits tbat the claim against bim was
a just one. Wby sbould he not discharge ail tbe debts wbich bis
own conduct made it necessary to incur ? To permit a party, by means
of wbat Judge Betts sententiously terms "an out-door settlement,"
to avoid tbe payment of sucb obligations would be to encourage prac-
tices wbicb the court sbould be slow to sanction. Courts of admiralty
in actions of tbis cbaracter bave seldom failed in similar circum-
stances to grant protection to tbe injured party. The Sarah Jane, 1
Blatcbf. & H. 401, 422; The Victory, Id. 443; The Planet, 1 Spr.
11; Angell v. Bennett, Id. 85; CoUins v. Nickerson, Id. 126; Gaines v.
Travis, 1 Abb. Adm. 301.
Tbe Ubelant's proctors are entitled to recover tbeir costs to be taxed
by tbe clerk.
PHBLPS V. CANADA CENT. B. 00. 801
Phelps V. Canada Cent. E. Co.
{Oirmit Court, N. D. New York. April 3, 1882.)
Kemoval op Cause— Ambnding Complaint.
Where, before tlie removal of a cause, the state court has restricted plaintiS
to his cause of action for breach of contract, on which an atiachment has been
granted, aud he has elected to consent to such order, and il is still in force
when the case is removed to the fédéral court, a motion by plaintifl in the cir-
cuit court for leave to amend his complaint may be denied, no change in the
relative position or rights of the parties having been made.
Motion to Serve Amended Complaint.
Mullin é Griffin, for plaintiff.
Edward C. James, for défendant.
Wallace, J. Before this action was removed into this court the
etate court had granted an order restricting the plaintiff from aver-
ring in his complaint any cause of action against the défendant other
than for alleged breach of contract set forth in the affidavit upon
which the defendant's property was attached and its appearance
thereby compelled. Although the main point considered by the state
court upon the motion 'which resulted in such order was the right of
the plaintiff to inoorporate into his complaint a cause of action and
prayer for équitable' relief, the order made was both broad and ex-
plicit in its terms, and confined the plaintiff to the cause of action
set forth in the affidavit for the attaohment. The plaintiff elected to
consent to that order as a condition of retaining his attachment,
which would otherwise hâve been vacated. Whether the state court
would hâve thus adjudged if the plaintiff had complained upon a
cause of action at law only, it is not for this court to détermine. It
suffices that the order, as made, was in force when the action was
removed to this court. Undoubtedly, this court has power to modify
that order, but it would be unseemly, when nothing has occurred
since the removal to change the rights or position of the parties, to
disregard the adjudication of the state court made upon hearing and
délibération and consented to by the plaintiff.
Although the plaintiff is entitled, by the Code of Procédure of the
state, to amend, as of course, within the time limited by the Code
after the défendant has answered, that right waswaived, in so far as
the exercise of it would involve any departure from the terms of the
order, by the élection signified upon the hearing which resulted in
the order.
The motion for leave to serve the amended complaint is denied.
v.l9,no.ll— 51
86â • ' .ÏEDEKAL BEPORTER.
SiMPKiNS u.Lakb Shoeb & M. S. Et.*
{Uiromt Court, E. D. New York. December 28, 1883.)
Rbmoved Cause — Jcrisbiction of Statb Codut— Detbrmtnation of ContkoI/-
lilNG Juins DICTIONAL ISSDE SOT PhOFBRLT HAD ON MOTION FOE SbCUBITT FOB
OOSTS.
An action having.been begun in a state court, under a state statute giving
that court jurisdiction of such actions when broiight against a iforeign cor-
poration, provided the plaintiiî be a résident of tlie state, the answer aveired,
as an objection to the jurisdiction, that the plaintiiî was not a résident of the
state. The défendant having removed tlie action to this court, moved for se-
curity for costs ou affldavits leuding to show such non-residence of the plain-
tiiî, which were met by counter affldavits. Held, that the issue thus presented
was one of the issues of the cause presented by the ploadings and was control-
Jing; for if the action would fail in the state court on account of the plaintill'a
upu-residençe, itwould fail in this court; and that thé détermination of a ju-
risdictibnal fact, which might invoîve a dismissal of tlie action, could not prop-
erly besoughthy a motion on affldavits, but should be left to abide the trial of
the issue presented by the answer.
Motion to Compel Security for Costs.
C. FerguHon, Jr., for plaintiff.
Burrill, Zabriskie é Burrill, for défendant.
Benbdict, J. This case cornes before the court upon a motion on
the part of the défendant to compel security for costs, upon the ground
that the plaintiff is a non-resident. The action was commenced in
the suprême court of the state. The complaint filed in the state
court averred that the défendant is a f oreign corporation. By a stat-
ute of the state, the suprême court of the state has jurisdiction of
actions like the présent when brought against f oreign corporations,
provided the plaintiff be a résident of the state, not otherwise. The
answer filed in the state court averred, by way of objection to the
jurisdiction, that the plaintiff was not a résident of the state of New
York, but of England. Thereafter, the défendant removed the case
to this court, and now movçs for security for costs upon affldavits tend-
ing to show the plaintiff to be a non-resident of the state. Counter-
afûdavits are read in support of the plaintiff's averment that he is a
résident. The issue thus raised is the eame raised by the defendant's
answer. It is one of the issues of the cause presented by the plead-
ings while the cause was in the state court. This issue tendered by
the defendant's answer is, moreover, controlling; for if the défendant
be a non-resident, as the answer asserts, the action would bave failed
in the state court for want of jurisdiction, and must therefore fail
hère, notwithstanding the plaintiff, if a non-resident, may also be an
alien, and the action, for that reason, one which this court is compé-
tent to eutertain. For it is the cause instituted in the state court
which is to be determined by this court, and the plaintiiï's résidence,
if fatal to the action in case it had remained in the state court, must
iReportod by R. D, & Wyllys Benedict, of the New York bar.
MOOBB V. NOBTH BIVEB OONSTBUOTION 00» 803
be fatal hère. The défendant, therefore, by the présent motion, séeks
the détermination of a jurisdictional fact, which détermination, if in
accordance with the defendant's contention, would involve a dismissal.
of the action. Such a détermination cannôt, in my opinion, be prop-
erly sought in this manner by a motion upon affidavits, but should be
left to abide the resuit of the trial of the issue presented by the an-
swer.
Motion denied.
MooRE and others v. Nokth Eivbb Construction Co. and others.
IGircuit Court, Xf. V. New York. April 3, 1884.)
JunisDioTioN op Fedehal Courts— Bepahate Coktkovbrst.*
Where citizens of New York, who are créditera of a New Jersey corpora-
tion, bring suit in the nature of a creditor's biil to reach real estate which they
allège was fraudulentl^- and uniawfully conveyed to a New York corporation,
no relief being demanded against the New Jersey company, held. that there was
no separate controversy belween citizens of différent statea such as to give ju-
risdiction to the United States courts.
On Motion to Eemand.
Edward W. Paige and Alonzo P. Strong, for plaintiffs.
P. B. McLennan, Otto T. Bannard, and Albert B. Boardman, îoï
défendants.
CoxE, J. The plaintiffs are citizens of New York. The défendant,
the North Eiver Construction Company, is a New Jersey corporation.
The other two défendants are New York corporations. The plain-
tiffs are creditors of the construction company. There being no
pleading before the court but the complaint, it must be the sole guide
in determining the eharacter of the action .. The relief demanded ia
that certain real estate alleged tohave been paid for by the construc-
tion company, when insolvent, and conveyed direct to the railway
company in fraud of the plaintiffs' rights, be sold to satisfy their
claims. Also that an injunction issue restraining the défendants from
disposing of or incumbering the land. No judgment is asked against
the construction company.
Because the plaintiffs are not judgment creditors, it is argued that
there is a controversy between them and the construction company,
and that this court therefore bas jurisdiction. In one sensé, un-
doubtedly, this is true, but is it such a controversy as is contemplated
by the statute? Is it, to use the language of the chief justice in
Hyde v. RuUe, 104 U. S. 409, "a separate and distinct cause of ac-
tion ?" Does the complaint state two causes of action or one ? No
separate judgment could be entered against the construction com-
pany. Should the trial court find on the main issue that there were
no purchases of land as alleged, the complaint would be dismissed as
804 FBDBKAIr REPOBTBB.
to ail of the défendants without référence to what the proof mîght be
upon the question of indebtedness. Test it in another way. Sup-
pose on the trial the plaintiffs prove that they are creditors of the con-
stniction company and there stop. Would there be a judgment
against that company for the amount so proved or a gênerai decree in
favor of ail the défendants? It is thought that under the allégations
of this complaint the latter would be the inévitable result. In Barney
V. Latham, 103 U. S. 205, on the contrary, there were two entirely
distinct controversies in each of which judgment could be entered.
In the case at bar the perplexities which surround the question of
jurisdiction are enhanced by reason of the anomalous character of
the action, but it may be said with certainty that the goal which the
plaintiffs seek is tbe land in the possession of the West Shore com-
pany. In order to reach it they must establish a number of facts,
regarding which undoubtedly a controversy may arise between them
and the construction company. For instance : they must prove that
the company was insolvent, that its money paid for the land, that
the transfer was collusively made, that they are creditors, etc. The
construction company is interested in disproving each of thèse prop-
ositions : but are they not, if denied, issues to be tried rather than
separate and distinct causes of action ? I am constrained to hold
that the motion should prevail on the ground that the action, if it
can be maintained at ail, must proceed upon the theory that there is
no separate and distinct controversy which can be fully determined
between the plaintiffs and the construction company, within the
meaning of the second clause of the second section of the act of 1875.
The complaint bas been considered solely with référence to the
question of jurisdiction. It is not intended that anything said upon
this question shall be considered as an intimation that a creditor who
bas not established his claim by a judgment can maintain an action
of this character.
The motion to remand is granted.
Nashua & L. E. Coup, ana others v. Boston & L. E. Cobp. and
others.
{Circuit Court, D. Massachusetts. March 25, 1884.)
Consolidated Railkoads— Status in Ditterent States.
Two corporations, charted under the laws of difEereut states and afterwards
Consolidated under tlie laws of both, are separate in so far that each state is
left the control over the charter it grants, and identical in so far that the cor-
porations may represent each otherin suits by or against either of them.
SaMB— -EqUITT — POOLING AGBNT,
T}je pooling agent, under a con tract between railroad companies, is a trustée,
and as suoh is accountable in a court of liquity for bis acts.
KASHCA & L. K. COBP. V. BOSTON & L.,E. COBP. 805
3. Bamb — Pauties to Suits.
The plaintiff is entitled to join as défendants 'with the corporation ail per-
sons into whose hands they can trace the l'uiids of the joint management.
5. BaME — CONTRACT— ESTOPPEL.
A pooling contract being once executed, one corporation is estopped from
denying the validity of its own act in making it, in défense of an action for
its infraction brought by tho other. Btill less can the agents of the parties
set up such a défense.
In Equity.
F. A. Brooks, for plaintiffe.
S. A. B, Abbott, for défendants.
Nelson, J. The bill sets forth, in substance, that for the term of
20 years from and after October 1, 1858, the Nashua & Lowell Eail-
road and the Boston & Lowell Eailroad were operated jointly under
a pooling contract, by the terms of whioh both roads were to be placed
under the control and management of a joint agent to be appointed
by the directors of the two corporations, and the joint earnings and
expenses were to be shared in the proportion of 31 per cent, of the
whole to the plaintiff and 69 per cent, to the défendant corporation,
the division to be made on the first days of April and October in each
year; that the défendant Hosford was appointed and acted as the
joint agent under the contract from April, 1875, until the expiration
of the contract ; that the défendant Bartlett, who was also the treas-
urer of the défendant corporation, was appointed and acted as cashier
of the joint funds ; that Hosford, while agent, had, in violation of the
contract and without authority, paid over to the défendant corpora-
tion from the joint earnings large sums of money, amounting, as al-
leged, to $208,086, being 31 per cent, of the interest, reckoned at 7
per cent, a year, from 1872 to 1878, on the entire outlay of the de-
fendant corporation in the érection of new passenger stations in Bos-
ton and Winchester, in building the Mystic River Eailroad, and in
purchasing certain shares of the Salem & Lowell and Lowell & Law-
rence Railroads, (after deducting dividends on the shares,) the whole
of which expenditure was, by the terms of the contract, to be borne
solely by the défendant corporation; that Bartlett, at the termination
of the contract in 1878, had in his possession as cashier the sum of
$60,000 of the joint funds, 31 per cent, of which belonged under the
contract to the plaintiff; and that, acting under the direction of the
défendant corporation, he had refused to pay the plaintiff its share
thereof, but had "either retained such share in his own hands, or had
paid it over to the défendant corporation. The prayer of the bill was
for an account.
The Boston & Lowell Eailroad Corporation and Bartlett bave de-
murred to the bill, assigning varions grounds of demurrer.
By the familiar rules governing courts of equity the plaintiff is
clearly entitled to équitable relief upon the case stated in the bill.
The joint earnings of the roads constituted a trust fund in the hands
of the joint agent, to be held by hira as a trustée for the benefit of the
806 FEDEEAL EEPOETEB.
two corporations, and to be applied by him in the manner specified
in the contract. A failure on his part to perform this duty rendered
him liable to account to the party aggrieved. If, through the mis-
taken or wrongful act of the agent, the Boston & Lowell road bas re-
ceived a larger share of the net earnings than belonged to it under
the contract, the plaintiiï is at liberty to foUow the fund into the
hands of the défendant corporation and compel its restitution. If,
as the défendants argue, the pooling contract was not within the cor-
porate powers of the parties to it, that can afford no défense to the
' Boston & Lowell road, when called upon to restore to the plaintiff the
Bums received in excess of its due share. As the contract bas been
fully executed, and the défendant road bas availed itself of ail the
benefits to be derived from it, that corporation is now estopped to
deny its validity. Still less can the agents of the parties set ap a dé-
fense of this character which is not open to their prinoipals.
Bartlett is properly joined as a défendant. The plaintiff is entitled
to join as défendants with the défendant corporation ail persons into
whose hands it can trace any part of the funds of the joint manage-
ment.
It bas already been decided in this case that the plaintiff, as a cor-
poration chartered by the laws of New Hampshire, can maintain this
suit in this court against the défendants, who are citizens of Massa-
chusetts, although the plaintiiï is a part of a joint or Consolidated
corporation under the laws of New Hampshire and Massachusetts.
8 Fed. Bep. éô8. Corporations thus ereated are separate for the pur-
poses of jurisdiction, and to enable each state to exercise control over
the charters which it grants and over the acts of the corporation within
its own limita. But the corporations are so far identical that they
represent each other in suits by or against either of them, and the
judgments or decrees will bind the whole corporation. Home v, Bos-
ton & M. B. E. 18 Fed. Eep. 50. The Massachusetts corporation is
therefore not a necessary party to this bill.
The bill waives an answer under oath. By waiving the oath no
discovery is sought, and it is not necessary to interrogate the défend-
ants specially and partie ularly upon the statements of the bill. Equity
rules 40, 41.
The bill prays that the défendant corporation may answer by it.s
président, J. G. Abbott. This must be regarded as mère surplusage,
and not as ground of demurrer. The plaintiff is entitled to the answer
of the corporation, but bas no right to requif e that it shali answer by
its président.
Demurrers overruled.
CNITED STATES «, BTOWE. 807
United States v. Stowb and othérs.
(District Court, D. Minnesota. Pebiuary 23, 1884.)
1. Double Compensatiok— Prohibition Applicable Oi^ly to Ofpicial SbbV-
ICE8.
OfBcers and agentsof the government arenotforbiddentoreceive extra com-
pensation for services rendered entirely apart from their officiai functiona, but
only for services required of tliem withintlae scope of tlieir employaient.
2. Pas'ment of FiiEiaHx— Agent Entitled ïo Ueimbubsbment.
The statutesdo not forbid the payment of freight by an Indian agent when
supplies are demanded at once by a siiddea emergency, and an agent paying
Buch charges is enlitled to reimbùrsement. •
Action upon the bond of Lewis Stowe, late Indian agent at the
White Earth Eeservation. Défendant Stowe, as such agent, and un-
der the direction of the commissioner of Indian affairs, hired Warren,
the officiai interpréter at the agency, to render certain services as a
day laborer in the government warehouse, and as a clerk in the
agent's office. ■ For such services he paid Warren $336. This item
was disallowed by the accounting oiEcers of the government in the
settlement of Stowe's account, under sections 1764, 1765, 2074, 2076,
Eev. St. For the transportation, in 1876 and 1877, of certain. gov-
ernment property from St. Paul to Détroit, Minnesota, for the use of
the ageney, défendant Stowe paid to the- Lake Superior & Missis-
sippi Eailroad Company $210.67, and to the Northern Pacific Eail-
road Company $52.55, which expenditures were disallowed by the
accounting officers of the government, under paragraph 2, § 1, c. 133,
(18 St. at Large, 452,) also section 1, Supp. Eev. St. 171, (Eichard-
son's.) For the defieiency caused by thèse disallowances this action
is brought.
C. A. Congdon, Asst. U. S. Atty., for plaintiff.
Gordon E. Cole, for défendants.
Nelson, J. Stowe, the agent, was authorized by the commissioner
of Indian afïairs to hâve the services performed for which he paid
Wai-ren, the interpréter. The law required the agent to exécute this
order. Eev. St. § 2058, p. 362. Warren was not forbidden to reçoive
compensation for doing the work. Sections 1764 and 1765, Eev. St.,
do not apply to this case, for the employment was not in the Une of
his officiai duty as interpréter, and had no connection with it. It is
only when extra and additional duties are imposed upon an officer as
a part of his duty, and he is bound to obey or perform them, that
such ofBcer is not entitled to and eannot receive extra pay, unless it
is fixed by law, and "the appropriation therefor explicitly states that
it is for such additional pay," etc.
2. In my opinion section 1, par, 2, Supp. Eev. St. p. 171, and sec-
tion 5, act of 1864, granting land to the Lake Superior & Mississippi
Eailroad Company, and section 11, charter Northern Pacific Eailroad
Company, do not forbid the payment of freight by the défendant; and
808 FBDEBAli BBFOBTEB.
it was admitted in the argument that a sudden and unforeseen emer-
gency had arisen, requiring prompt action in the interest of human-
ity. If 80, an équitable crédit, at least to the extent of the claim
made by the défendant, should be allowed, under the act of March 31,
1797. See U. S. v. Lowe, 1 Dill. 585.
Judgment is ordered for défendants.
A provision in an act of congress, prohibiting persona holding ofilce under
tlie United States from receiving compensation for discharging tlie duties of
any other office, does not apply to services entirely unconnected with their
officiai position. U. S. v. Brindle, 4 Sup. Ct. Hep. 180.— [Ed.
EosE V. Stephens & CoNDiT Teansp. Co.
(Circuit Court, S. D. Ifew York. April 8, 1882.)
New Tkial— Damages— Pebbonal Injurt— Newlt-Discoveeed Evidence.
In an action to recover damages for a persoiial ÏDJury a motion by défendant
for a new trial because of newly-discovered évidence as to the extent of plain-
tift's injuries will not be granted where it does not appear that défendant, be-
f ore the trial, made any investigation as to the character of the injuries received.
Motion for New Trial.
Chauncey Shaffer, for plaintiff.
Thomas E. Stillman, for défendants.
Wallace, J. The motion for a new trial upon the ground of newly-
discovered évidence should not be granted, because the défendant
has failed to show that by the exercise of reasonable diligence the
évidence newly discovered could not hâve been obtained and used
upon the trial. The évidence relates to the extent of the injuries re-
ceived by the plaintiff through the négligence of the défendant. The
plaintiff alleged in his complaint that he had sustained severe inju-
ries, and claimed $6,000 damages. It does not appear that prior to
the trial the défendant made any investigation to ascertain the char-
acter or extent of thèse injuries. Its officers seem to hâve contented
themselves, in their préparation for a défense of the action, with ac-
cepting the plaintiff's case as it might appear upon the trial, so far
as this issue is coneerned. If it had been shown, upon this motion,
that an effort had been unsuccessfully made upon their part, by in-
quiry of such persons as would be likely to bave knowledge.of the
facts, to asceftain the character of the plaintiff's injuries, a very dif-
férent case would, be presented, and one which might appeal with
Bome force to the favorable considération of the court. To grant the
motion upon such a case as is made would encourage sùpineness on
the part of défendants. The précèdent would encourage défendants
IN EE ALLEN. 809
to ignore proper préparation upon one materîal issue, in order to
obtain the chances of a second trial in case of failure upon the other
issues.
The motion is denied.
In re Account of Allen, Chief Supervisor of Elections, etc.'
[Dielrict Court, E. D. Km York. November 12, 1883.)
AccouNTS OF SupEuvisoB OP Blections— AcT OF February 22, 1875, (18 St. at
Large, 333,)— U. 8. Rev. St. § 2031 — Cbktificate of Judse dndbr f 846.
The effiect of Rev. St. } 2031, is not such as to bring the accountg of a chief su-
perviser of élections within the soope of the act of February 22, 1875, (18 St. at
Large, 333,) providing for the passing of accounts of clerks, marsh&ls, district
attorneys, and United States commissioners in open court.
Account of Supervisor of Elections.
Frank W. Angel, Asst. U. S. Atty., for the United States.
John J. Allen, for himself.
Benediot, J. The account of John J. Allen, the chief supervisor
of élections in this district, was presented to the district judge of the
district, and was certified by him pursuant to section 2031of theEevised
Statutes in the manner heretofore adopted with référence to other
similar accounts. The same account is now submitted to the district
court by the district attorney, for the purpose of having the account
passed on in open court, in the manner provided for the accounts of
clerks, marshals, district attorneys, and United States commissioners
by the act of February 22, 1875, § 1, (18 St. at Large, 333.) This ac-
tion on the part of the district attorney has raised, among otbers, the
question whether the efifect of section 2031 is to bring the accounts
of a chief supervisor of élection within the scope of the subséquent
act of February 22, 1875, which act is, by its terms, limited to the
accounts of clerks, marshals, district attorneys, and United States
commisBioners. Upon this question my opinion is that no such effect
can be given to section 2031, and that the act of February 22, 1875,
has no application to the accounts of a chief supervisor of élection.
For this reason, therefore, if there were no other, the court is con-
strained to décline to enter upon the inquiry tendered by the dis-
trict attorney in référence to this account, without passing upon the
validity of a statute like this of February 22, 1875, which seeks to
authorize proving of an account "in open court" before a circuit or
a district court, and at the same time provides for the revision of
the action of the court by the accounting officers of the treasury.
See U. S. V. Ferrcira, 13 How. 40; U. S. v. Todd, Id. note, p. 62;
Ex parte Gans, 17 Fed. Eep. 471.
1 Reportcd by K. D. & Wyllys Benedict, of the New York bar.
810 FEDEBAL EBPORTER.
A further suggestion having been made that tlie judge's certificate
attached to this account is not a certificate such as contemplated
by section 846, I take this occasion to say that the certificate is
in the form adopted many years ago, and, so far as I am aware, it
has always, up to this time, been deemed a suificient compliance with
the provisions of section 846. In my opinion, no other or différent
certificate can be required of the judge in respect to this account.
The account is therefore direeted to be returned to the district at-
torney, to be dealt with by him as be may be advised.
Hendryx and others v. Pitzpatbick.
'.Circuit Court, B. Massachusetts. April 2, 1884.)
CoNTKMPT — Power of Court to Revokb its Obdbus.
An order coramittiog a défendant for contempt, in refusing to pay a suim of
moaey, is civil, and not criminàl, in its nature, and tlie court whicli committed
him is at liberty to release him again in case he abowa himsejf unable to com-
ply with the requiremenis of the court
In the Matter of Contempt of Court.
T. W. Porter and /. McC, Perkins, for complainants.
A. H. Briggs, for défendant.
Before Lowell and Nelson, JJ.
LowELL, J. In this case the défendant was enjoined from în-
fringing a patent, pendente lite, because, though the court had serious
doubts of its validity, the défendant had himself sold the patent to
the plaintiffs for a considérable sum of money, and it was thought no
more than justice that he should refrain from violating his own im-
plied warranty until the final hearing. Afterwards proceedings for
contempt for a violation of the injunction were prosecuted by the
plaintiffs, and after évidence taken and a hearing, the défendant
was ordered to pay the fées of the master by a certain day, the costs
of the proceedings, and certain profits assessed by the master, by cer-
tain other days, and in default of payment to be committed. Thèse
)ast two sums, when paid in, were to be paid ont to the plaintiffs.
The défendant failed to make the last two payments, and was com-
mitted to prison. After he had been in confinement for about two
weeks the district judge, with my approval, though I was unable to
sit in the case, permitted the défendant to go before the master and
prove, if hè could, in proceedings like those under the poor-debtor
law of Massachusetts, that he hàd no property which he could apply
to the payment of his debts. The plaintiffs were duly notified of the
hearing before the master and did not attend, and the master admit-
ted the défendant to take the poor-debtor's oath; and thereupon the
court discharged him upon his owu recognizauce.
HÉNDRYX ». FITZPATBIOK. 811
The plaintiffs now move that the défendant may be recommitted
under the original order. They argue that every order since made in
the cause is idtra vires and void, because the first order was a final
decree in a criminal case, and could not be varied after the term;
and because the défendant could only be discharged from arrest by
the pardon of the président, It would be a sufficient answer to this
argument, that, if the order was a criminal one, having the consé-
quences contended for, the fine should hâve been made payable to the
United States, and the plaintiffs would hâve no concern with it; but
we will explain why ail the orders are, in our opinion, proper. The
original order was an interlocutory civil order, for the benefit of the
plaintiffs; and the commitment was for failure to pay the money,
not for the original oontempt. While, therefore, the imprisonment
may not bave been strictly and technically within our poor-debtor
law, (Eev. St. § 991,) which, however, we think it was, yet it should,
at ail events, be governed by similar rules. It was made in this
way, because the master found that the contempt was not willful,
and I thought that no punishment was necessary. The proeess of
contempt has two distinct functions, — one, criminal, to punish dis-
obedience, the other, civil and remédiai, to enforce a deoree of the
court and indemnify private persons. In patent causes it has been
usual to combine the two, and to order punishment if it is thought
proper; or indemnity to the plaintiff,if that is ail that justice requires ;
or both. Re Mullee, 7 Blatchf. 23; Doubleday v. Sherman, 8 Blatchf.
45; Schillinger v. Giinther, lé Blatchf. 152; Phillips v. Détroit, 3
Ban. & A. 150; Dunks v. Gray, 3 Fed. Ebp. 862; Searls v. Worden,
13 Ped. Kep, 716; Matthews v. Spangenherg, 15 Fed. Ebp. 813.
We are aware that it was at one time the opinion of Judge Blatch-
FOED that a sum of money ordered to be paid to a plaintiff, in a cause
of this kind, was a criminal fine, which could only be remitted by a
pardon; but we are of opinion that such a fine for the benefit of a
private person cannot be remitted by the président, and is a debt of
a civil nature; and that Judge Blatohfobd has so treated it in the
latest case which has corne before him. His first opinion is stated in
MuUee's Case, 7 Blatchf. 23, and Fischer v. Hayes, 6 Fed. Eep. 63 ;
but when the latter case came before the suprême court, they expressed
a significant doubt whether the order to pay money for the use of
the plaintiff was not an interlocutory decree in a civil cause, {Hayes
Y. Fischer, 102 U. S. 121;) and when the case came back, Judge
Blatchfoed admitted the défendant to bail, (Fischer v. Hayes, 7 Fe0.
Ebp. 96,) which he could not hâve doue if the judgment were crim-
inal in its nature. The doubt of the suprême court might well hâve
been even more strongly expressed. An order upon a defaulting trus-
tée, assignée in bankruptcy, or other person subject to acconnt, to
pay money into court, is civil, and may be waived by the party ad-
versely interested, and is a debt to which a bankrupt law, discharging
the debt, and an insolvent law, discharging the person, are applicable.
S13 TEDEBAIi BEPOBTEH.
See Baker's Case, 2 Strange, 1152; Ex parte Parker, 3 Ves. 554;
and the décisions hereinafter cited.
In MclVUliams' Case, 1 Schoales & L. 169, a défendant in con-
tempt for not paying a legacy into the court of chancery in obédience
to its order was attached while attending the commissioner to be ex-
amined as a bankrupt. His arrest was lawful, if the eontempt was
a criminal offense. That very learned chancery lawyer, Lord Ebdes-
DALE, said that it was merely a mode of enforcing a debt; that if it
were not so he had no right to make the original order; that the
substance and not the form of the proceediug must govern, and its
substance was not criminal. The petitioner was diseharged. The
same point was decided in the same way in Ex parte Jeyes, 3 Dea. &
Ch. 764; and Ex parte Bury, 3 Mont. D. & D. 309.
The remark of the lord chancellor in McWiUiams' Case, that he
had no right to make an order of this sort for the benefit of a private
person, excepting as a civil remedy, is highly pertinent to this case.
Where a person had been committed to prison for nine months for
eontempt in not paying money into a county court, sitting in bank-
ruptcy, James, L. J., said : "The order, on the face of it, is wrong, for
it is an absolute order of commitment for eontempt of court for non-
■payment of money. This is a pénal sentence. ïhe court of chan-
cery never made an order in this form." And again: "The order of
commitment was such as had never been made in the court of chan-
cery, and was justly characterized by the chief judge as novel and
surprising." Ex parte Hooson,!!. B,. 8 Ch. 2S1. This distinction is
preserved in our Eevised Statutes. The courts hâve power to punish
for eontempt, (section 725 ;) but ail forms and modes of proceeding
which are usual in equity may be followed in cases in equity. Section
913. By virtue of section 725 the district court may punish con-
tempts. Like power is given the district judge when sitting in
chambers in bankruptcy, by section 4973; and the cognate but dis-
tinct power of enforcing his decrees "by process of eontempt, and
other 'remédiai' process," is recognized by section 4975. See In re
Chiles, 22 Wall. 157. Some of the older cases hold that in eontempt
in civil cases at common law, the proceedings, after the order of at-
tachment, should be on the crown side of the court; that is, in the
name of the sovereign. The King v. Sheriff of Middksex, 3 Term
E. 133; Same v. Same, 7 Term E. 439; Folger y. Hoogland, 5 Johns.
235. This is still the better practice, or, at least, a good practice,
if punishmentis asked for. Cartwright's Case, 114 Mass. 230; Du-
rant V. Sup'rs, 1 Woolw. 377; U. S. ex rel. v. A., T. é S. F. Ry. Co.
16 Fed. Eep, 853. If this was ever the rule of chancery, it has long
since ceased to be so, when the sole purpose of the attachment is to
enforce a deoree or order, such, for instance, as to sign an answer,
to make a conveyance, to pay money, etc. Ail such orders may be
waived or condoned by the private person interested in them, and-are
civil and remédiai. Ex parte Hooson, supra,- Ex parte Eicke, 1 Glyn.
HENDBYX ». FITZPATBIOK. 813
à J. 261; Wall v. Atkinson, 2 Rose, 196; Wyllie v. Oreen, 1 De Qex
& J, 410; Bvfum's Case, 13 N. H. 14; People v. Craft, TPaige, 325;
Jackson v. Billiags, 1 Gaines, 252; 4non. 2 P. Wms. 481; Const v.
Ebers, 1 Mad. 530; Smith v, Blofield, 2 Ves. & B. 100; Broww v.
Andrews, 1 Barb. 227; £?a; parte Muirhead, 2 Ch. Div. 22; Lees v.
A^ÊM^/oK, L. E. 1 G. P. 658; Re Rawlins, 12 Law T. (N. S.) 67.
In patent cases it bas been usual taembrace in one proceeding the
public and the private remedy — to punish the défendant if found
worthy of punishment, and, at the same time, or as an alternative,
tp assess damages and costs for the benefit of the plaintiff, as is seen
by the cases cited in the beginning of this opinion. A course analo-
gous to this has been said, obiter, to be proper, by Millbb, J., in jRe
Chiles, 22 Wall. 157, 168. "The exercise of this power has a twofold
aspect, namely, — First, the. proper punishment of the guilty party for
his disrespect of the court and its order ; and, the second, to compel
his performance of some act or duty required of him by the court
which he refuses to perform," citing Stimpson v. Putnam, 41 Vt. 238,
where a défendant was, at the same time, fined $50 for the benefit
of the state, and $1,170 and interest and costs for that of the party
injured by breach of an injunction. The chancellor in that case
said : "This proceeding for contempt is instituted not only to punish
the guilty party, but also, and perhaps chiefly, to cause restitution to
the party injured." Sach, we repeat, has been the practice in pat-
ent causes. It is used in other cases, as in the familiar one of a
witness neglecting to answer a summons, who may be iined for his
disobedience, and also be required to testify.
If the proceedings should be criminal in form it wonld make no
différence. A criminal sentence, for the benefit of a private person,
is to be treated as civil to ail intents and purposes. It is beyond the
king's pardon, and within the équitable jurisdiction of the court at
ail times. 4 Bl. Comm. 285. At this place the author, speaking of
disobedience to any rule or order of court, of the sort we are cou-
sidering, says:
"Indeed, the attachment for most part of this species of contempts, and
éspecially for non-payment of costs and non-performance of awards, is to be
looked upon rather as a civil exécution for the benefit of the injured party,
thpugh earried on in the shape of s criminal process for a contempt of the
authority of the court. And therefore it hath been held that such contempts,
und the procesa thereon, being properly the civil remedy of ah individual for
a private injury, are not released or affected by the gênerai act of pardon."
Where a défendant had been convicted of an offense against the
laws prohibiting lotteries, and had been sentenced to a tenu of im-
prisonrnent, which had expired, and to pay. costs for the use of the
pirosecutor, and had not paid them, he was ;discbarged frohi cuStody
under the lord's act, which was an early* insolvent law, Mke otirpoor'
debtor laws, so far as the discharge of the person is concerned. Rex
814 i FEDEBAIi SSPOBTEB.
V. 'StoTces, Gowp. 136. Aston, J., af ter saying that an attachment îb
an exécution for a' civil debt, and that the publie oflFenBe had been
purged by the imprisonment, added: "This stage of the cause, there-
fore, is merely of a civil nature, and a matter solely between party
and party, unconnected with the offense iteelf;" that it cornes within
the ineolvent debtor's act: "If not, the conséquence must be impris-
onment for life; for a gênerai pardon -would not extend to him;" that
is, "would not release him from costs due a private person, or from
imprisonment on account of them, "as was agreed in Rex v. Stokes,
23 Geo. IL" So, -where a penalty was inflicted by a criminal pro-
ceeding, but for the benefit of a private person, and an attachment
was issued for want of a sufficient distress, Bullbb, J., said that the
proceeding was like a civil action, and that Ex parte Whitchurch, 1
Atk. 54, -where attachment for not performing an award was heid to
be criminal, was no longer law. It was held, therefore, that the de-
fendant could not be attached on Sunday. The King v. Myers, 1
Term. R. 265. We do not mean to be understood that the court has
a gênerai discrétion to annul orders passed for the benefit of a party
to the suit; but that where inability is shown to comply with the or-
der, — as, for instance, insanity, if the decree requires an act to be
done, or poverty, if the decree is for the payment of money, — it ia
according to the course of the court, and of ail courts, to discharge
the imprisonment, of which the end is proved to be unattainable.
See, besides the cases already cited, Wall v. Court of Wardena, 1 Bay,
434; Re Sweatman, 1 Cow. 144; Kane v. Haywood, 66 N. G. 1; Gai'
land V. Galland, 44 Cal. .478; Pinckard v. Pinckard, 23 Ga. 286.
Where an attorney of any court fails to pay over money to hia
client, the court may, after due proceedings, commit him for a con-
tempt. This was formerly considered to be criminal, and is fully ex-
plained in 2 Hawk. P. G. 218 et seq. But it bas long since been set-
tled that it. is of a civil character. Ex parte Culliford, 8 Barn. &
G. 220; Rex v. Edwards, 9 Barn. & G. 652. The lord chief justice
in the latter case said that it had "always" been held that attach-
ments for non-payment of money were in the nature of civil process.
ïn Reg. v. Thornton, 4 Exch. 820, and ÎVie Queen r. Hills, 2 EU
& Bl. 175, costs in a criminal case were in question, and the défend-
ant was discharged — in one, because the prosecutor had proved for
the amount in bankruptcy, and thus waived the attachment, and in
the other, because the défendant had been discharged as aninsolvent.
In the former of thèse caëes, it was said by Pashley, arguendo, that
the courts had exercised the pôwer to discharge a défendant in such
a case, on account of poverty, as early as 29 Edw. I.
It was admitted, in argument, in the case before us, that the court
would not hâve been justified inimpdsing a pecuniary fine upon the
défendant if he had proved his poverty before the order was made,
but that afterwards it was too late. We are of opinion that no such
SEABLS V. lUBBBUM.: 9i|5
distinction can be maintained, but that thé défendant should be re-
leased from imprisonment in such a case, though his évidence ia pro-
duced while the order ia in process of enforeement agaiust him.
Pétition denied.
See In re Cary, 10 Fed. Eep. 622, and note, 629.— [Ed.
Seabls V. Mebbiam and another.
{Circuit Court, s. D. JCew York. January 30, 1882.)
Patents for iNVEirrroNs— Patent No. 221,452— Intention.
Patent No. 221,482, granted to Anson Searls, as assignée of John M. tJndtr-
wood, the inventer, November 11, 1879, for an improvement in whip-socketSi
is void for want of invention.
In Equity. '
J. P. Fitch, for plaintiff,
N. Davenport, for défendants.
, Blatchford, j. This suit is brought on lettera patent No. 221,-
482, granted to the plaintiff, as assignée of John M. Underwood, the
inventor, November 11, 1879, for an "improvement in whip-sockets."
The whip-socket is formed bf a hollow oylinder, thé upper open end
of which is providedwith a flexible elastic ring of India rubber or
analogous material, for the purpose of holding the whip-stock upright
by the pressure between it and the interior of the ring. The ring
fits in a recess or annular groove in the upper open end of the socket,
80 as to be retained therein by its own elastic expansive force". The
inner edge of the ring is corrugatéd, or provided with projectionB
formed on and extending from the inner edge of the bodydf thé ring,
inwards towards its center. Thèse projections are entiréty séparated
from eaçh other, with spaces between them, so that they. wîU not be
pressed into contact with one another, by the insertion of the butt of
the whip-atock in the socket. The extrême inner faces of the pro-
jections form a circle and support the stock by pressing against it,
while they yield to permit it to be pushed in or drawn out, and the
ring, though disturbed in place by those movements, will readjust
itself in the recess when the stock is removed, because it is held
therein by its elastic force alone. The patent bas two claims :
"(1) The corabination with a whip-socket havi^ig an annular recess in it,
of a flexible elastic ring, which may be held in such recess by its own elastic,
force, and, which is provided on its inner edge with non-contiguous projec-
tions, séparated so tliat they cannot be pressed into contact with one another
by the insertion of the whrp-i<tock into the ring; (2) The ring composed of
a body with such projections." . ,'
816 FEDERAL EEPOETEB.
The spécification sets forth that "a simple rubber ring, \çithout
projections» had been used, held in an annular reeess in the mouth
of the Bocket, the interior of the ring being made small enough to
grasp the whip-stook, and such a ring bas been held in place in the
reeess in the socket by its own expansive force;" also, that radial
slits hâve been eut in the inner edge of the ring without removing
any of the rubber. The point of the new arrangement is stated to
be, that "the separated projections, while they are rigid enough to
hold the whip npright and prevent it from wabbling, will yet so easily
give way to the pressure of the stock as to allow the stock to be readily
inserted and removed."
It is obvions that a plain ring, or a ring with radial slits, has the
same action in combination with an annular reeess, in which it is
held by its elastic force alone, so far as regards its readjustment in
the reeess when disturbed, that a ring with inward non-contiguous
projections has. The co-action between the reeess and the part of
the ring in it, when the part of the ring ont of it and next the stock
is disturijed, is the same in ail three cases. Therefore, if the ring
with inward non-contiguous projections existed before, even though
without the annular reeess, there was no patentable invention in
using such ring with the old annular reeess with which the plain ring
had been used.
The date of the Underwood invention was May, 1878. The rubber
disk, défendants' Exhibit C, with non-contiguous projections, existed
in 1873. The number of projections and the number and size of the
openings between the projections depended then, and dépends now,
on the thiekness of the rubber, That fact was then known. It was
also then known that the capacity of the rubber to exert the expan-
sive force necessary to maintain its place in the annular reeess de-
pended on its substance and thiekness. In view of the use in an
annular reeess of a plain ring of sufîScient substance and thiekness
to maintain its place in the annular reeess, the fact that défendants'
Exhibit C was not used in an annular reeess, but was clamped be-
tween the end of the socket and a cap, is not sufQcient to make it a
patentable invention to use in an annular reeess a rubber thicker
than défendants' Exhibit C, with the same character of non-contigu-
ous projections. The action of the inner part of the ring against the
stock, so far as the non-contiguous projections are concerned, is the
same whether the outer part of the ring is held in an annular reeess,
or is clamped between the end of the socket and a cap. It is quite
apparent, as is stated by the expert for the plaintiff, that the number,
or size, or shape of the openings between the projections does not
constitute a substantial différence, so long as they are of sufiicient
size and of a proper shape to permit the stock to pass through the
ring without forcing the edges of the projections in contact with each
other, and the smaller portions of the projections are extended towards
the center. Thèse conditions are found in défendants' Exhibit C.
PENTLARGE ». PBNTLAEflB. 817
When the idea is once suggested, as in that exhibit, to hâve openings
of that character, it is but ordinary knowledge to vary their number
and size according to the thickness of the material.
Neither daim of the patent oan be sustained, and the bill is dis-
missed, with costs.
Pbntlaegb V. Pbntlaege.*
{Gireuit Court, E. D. Nm Yorh. January 22, 1884.)
Intkbpbbino Patents — Action undbb Rbv. St. § 4918 — Plea in Bab.
In an action under Kev. 8t. } 4918, where the plaintifE seeks to Ixave the de-
fendant's patent declared void on the ground that it is for the same invention,
and subséquent to the plaintiff's patent, a plea in bar by the défendant, which
^dmits the priority of the plaintiff's patent for the same invention, but sets out
a fact which would render the plaintiff's patent void for want of novelty,
must be overruled, because the fact is immaterial in this proceeding.
In Equity.
Preston Stevenson, for plaîntiff.
Brodhead, King é Voorhees, for défendants.
Bbnedict, J. This case has, for the convenience of counsel, been
presented in gérerai aspects. To an .amended bill the défendants
hâve filed a demurrer. The questions raised by this démarrer are the
same as those heretofore raised and determined upon a demurrer to
the original bill in this cause. The action, so far as it rests upon
facts Bupposed to mafee out a case of duress, is not strengthened by
anything contained in the amended bill, nevertheless the amended bill
can stand for the same reason that the original bill was allowed to
stand. The demurrer to the amended bill is therefore overruled.
Next may be considered the question raised by a motion on the part
of the plaintiflf to strike from the files a plea interposed by the de-
fendants ; or, otherwise, that the plea stand as an answer. By this
motion the question has been raised whether the fact stated in the
plea must not be brought before the court by answer, and not plea.
This action is a proceeding taken by virtue of Eev. St, § 4918,
■where provision is made for a suit in equity whenever there are in-
terfering patents. The bill, af ter setting forth a certain patent issued
to the plaintiff, as the first inventer of the invention therein described,
charges that the défendants hâve a patent issued subséquent to the
plaintiff s patent, and for same invention, which patent the plaintiff
prays may be declared void, pursuant to the provisions of section
4918. To this bill the défendants hâve interposed a plea in bar of
the action, in which plea they say that the invention described in the
plaintiff's patent was described in an Englisb patent issued in 1855
iReported by R. D. & Wyllys Benedict, of the New York bar.
v.l9,no.ll— 52
818 ÏEDBBAIi BEFOBTEB.
to William Eowland Taylor, and printed and published, and filed in
the United States patent-offioe prior to the timô of the plaintiC's al-
leged invention, by reason wliereof plaintiff's patent is void, and dôea
not entitle bim to maintain any action based thereon. And the ques-
tion arises wbether the subject-matter of this plea can be brought be-;
fore the court by plea. If a décision of this question of practice wero
neoessary on this occasion, it might be dif(icult to assign any sub-
Btantial reason why, if the facts stated in the plea respecting the
English patent be fatal to the plaintiff's right of action, such facts
may not be presented by plea, provided the défendant elect, as this
défendant bas done, to présent them in that way, and not by answer.
But a décision of that question is not called for hère, inasmucb as the
argument of the plea, which -was had without préjudice to the ques-
tion raised by the motion, bas satisfied me that the plea must bc
overruled upon the ground that the faot pleaded, if true, is immate-
rial in an action like the présent. ,
The proceeding is statutory, instituted by virtue of section 4918.
Such a proceeding, as I conçoive, bas for its sole object a détermina-
tion of the question of interférence and of priority of invention. It is,
by the terma of the statute, limited to cases of interfering patents,
and it is only in case interfering patents are found to bave been is-
sued that the court is empowered to "adjudge and déclare either of
the patents void." The implication is that when the patents are
found to interfère, the resuit of the proceeding sball be a decree
making void the patent issued to the later inventor. But if the de-
fendant in such an action may attack the plaintiff's invention upon
any ground which the statute. permits to be set up by answer in an
action for infringement, it would often result that the proceeding
would fail to secure an adjudication of the question of interférence,
and so the proceeding be rendered futile for the purpose which the
statute intended should be accomplished. Such would be the resuit
in this case. By this plea the défendant admits the averment of the
bill that the plaintiff's patent is for the same invention as that de-
scribed in the defendant's patent, and also that the plaintiff was the
first inventor. Upon thèse facts, according to the statute, the plain-
tiff should bave a decree declaring the defendant's patent void, and
yet if the plea be allowed the plaintiff will obtain no adjudication
upon this question, while the défendant will obtain a decree declar-
ing the plaintiff's patent void and leaving bis own to stand; and this,:
too, when the faot stated in bis plea, if true, taken in connection
with the facts «tated in the bill, which are admitted, show the de-
fendant's patent to be also void. The défendant, then, by bis plea
ànd his admission, taken together, shows bis own patent void, and,
upon that showing, olaims a decree declaring the plaintiff's pat-
ent void and leaving his :6wn unaffected. Such a resuit cannot, as
it seems to me, be permitted. According to my understanding of
the statute, the proceeding permitted thereby is to be confined to a
GLOBE NAIIi CO. V. UNITED STÂTEB EOBSB NAIL CO. 8I£^
détermination of the questions of interférence and priority, and, if I
am right in this, the issue tendered by the plea is immaterial. This
conclusion has not been reached without giving careful considération
to the opinion expressed by Treat, J., in Poster y. Lindsay, 8 Dill.
126, where the opposite conclusion was arrived at. With ail my re-
spect for the opinion of that distinguished judge, I am unable to
agrée with him.
An order will accordingly be entered overruling the plea.
Globe Nail Co. v. United States Hobse Nail Co. (Two Cases.)
{Oircuit Court, D. Massachusetts. March 20, 1884.)
1. Patent— Horse-Shob Nail — Infrinobment.
Patent No. 92,355 for a horse-shoe nail made by cold-rolling the shank of a
headed blaak eut from a hot-rolled ribbed bar, /idd to be infringed by the man-
ufacture of a nail produced in the same manner, escept that the head is cold-
rolled, aod a small portion of the shank next to the head not rolled at ail.
2. 8amb— Method not Shown in Pbevious Patent;
The nail secured by letters Ko. 92,356 differs in hardness in its différent parts ;
and the validity of the patent is not affected by the description in a previous
patent of a method of manuf acturing nailsof uniform hardnesa throughout.
3. Same— Keissued Patent No. 5,207.
Keissued patent No. 5,307 held to be substantially identical with the original,
No. 78,644, and therefore valid.
4. Bamb— Infringkmbnt — Horse-Shoe Nails.
The process described by reissue No. 5,207, of beveling the points of horse-shoe
nails by spreading the métal laterally and then shaving off the superfluous
projections, held to be infringed by a tàcthod purporling to force the métal up-
jvards instead of sidewise
In Eqnity.
Chauneey Smith and George L. Roherts, for complainant
Browne, Holmes é Browne, for défendant.
Before Lowell and Nelson, JJ.
Nelson, J. The first of thèse suits is for the infringement of
patent No. 92,355, granted to Arlon M. Polsey, July 6, 1869, for an
improved manufacture of nails. Aocording to the description given
in the spécification, the invention consists in a horse-shoe nail, the
head of which is in that condition of softness which is produced by
hot-rolling the métal, and the shank or body of which is hardened by
rolling, when cold, with a constantly increasing pressure from head
to point. A blank is first eut from a hot-rolled ribbed bar, the pro-
jection and form of the rib being that of the finished head of the nail.
The blank, when cold, is submitted to a rolling process, which be-
gins at or near the base of the head, and continues with a gradually
increasing compression to the point. By this opération the rigidity
nf the body of the nail is left nearly uniform throughout its whol&
820 ' FEDERAL REPOBÏEB.
length, since its cross-section diminishes in area from, head to point
in about the same ratio as the métal becomes barder under the in-
creaaing pressure. A nail is thus formed witb the head sufficiently
soft to yield under the hammer and imbed in the groove of the horse-
shoe, with the shank near the head hard enough to keep from bend-
ing, but not so hard as to prevent it from conforming readily to the
nail hole, and with the point end so rigid as to retain its form and
direction in driving. The single claim of the patent is this:
"A nail made by punchiug or cutting from hot-roUed ribbed bars of métal
a headed blank, substantially as described, and by elongating, hardening,
and compressing the shanks of such blanks by cold-roUing from the head to
the point, thereby giving to ail parts of the nail so produeed the peculiar
qualifies specifled."
The nail manufactured by the défendant is made in the same
manner, and is in ail respects the same as the Polsey nail, except
that in the case of the former the head is oold-rolled with diminish-
ing hardness from the top to the base, and the cold-rolling of the body
commences a short distance below the base of the head, thus leaving
a small part of the shank next the head, described as about one-tenth
of the length of the blank, unrolled. The position of the défendant
is that thèse altérations in structure take its nail out of the claim of
the patent. But we are unable to give to them this effect. The leav-
ing unrolled a small portion of the shank next the head, where in the
patent the métal is left comparatively soft, so as to easily conform to
the irregularities of the nail-hole, is manifestly only a trivial and un-
substantial variation from the Polsey nail. The same may be said of
the added hardening of the head. An attempt is made to show that
by making the shank soft near the head the nail will drive -and fit the
nail-hole more readily, and that hardening the upper part of the
head rendors it better capable of resisting the wear of the pavement,
and thus a more serviceable nail is produeed. We think the évidence
fails to prove this. But, if true, the new éléments œust be regarded
as additions to the Polsey nail, and not as rendering the nail a sub-
stantially différent article. A nail so constructed still possesses ail
the essential qualities of the Polsey nail. It is a nail made, by cutting
a headed blank from a hot-rdlled ribbed bar, a,nd then elongating,
hardening, and compressing the shank by cold-rolling, substantially
from head to point, whieh is the invention described in the spécifica-
tion and claim oî the patent.
The défendant further insists that the Polsey method is shown in
the Whipple patents, No. 41,881 and No. 41,955, bothanteriorto the
Polsey patent. The former is for a blank for horse-shoe naib, with
the head of the form of the frustra of two pyramids having a commoh
base, and the shank tapering therefrom to the point, the blank to be
afterwards drawn out and flattened into a nail by a suitable machine
or by hand. The latter is for a machine to produce such blanks by
Bwaging, and to flatten and finish them into naila by roUing. We
OIiOBB MAIL 00. V. UMITEO STAT£3 HOBSE NAIL 00. 821
havG examined thèse patents with oare, but find nothing in them re-
sembling the Polsey invention. Whether the opérations described
for forming Ihe blanks and nails are performed when the métal is hot
or cold is not stated. But in either case the nail is lef t with an equal
hardness throughout the head and shank, and thus différa whoUy f rom
tJie Polsey invention.
In the second case the plaintiff sues for the infringement of reissue
patent No. 5,207 dated December 31, 1872, and granted to the plain-
tiff, as assignée of S. E. Chase, for an improvement in finishing nails.
The original of this patent vyas No. 78,644, dated June 6, 1868. The
invention is described in substantially the same terms in the spécifi-
cations of the original and the reissue. It relates to a method of
finishing horse-shoe nails, and giving bhem the désirable curvature
throughout the body and a beveled and pointed form at the end by
means of mechanism. The method described consista of tv?o sncces-
sive opérations. In the first the nail, when nearly finishejd, is sub-
mitted to the action of a die, which, by compression, gives to it the
proper curvature flatwise and forms a bevel at the point, tho super-
fluous métal being spread out by the pressure on each side and be-
yond the point end. In the second the nail is again subjected to the
action of a die which forces it through an orifice in a bed, the die and
orifice having corresponding outlines and the requisite dimensions and
contour. The die and orifice together operate as shears to shear off
and remove the superfluous métal spread out on the sides and point
in the first opération, and to eut and trim the nail at its point to the
exact form of the finished nail. In the first opération the nail re-
çoives its longitudinal curvature and its bevel at the point and is fin-
ished fiatwise ; and in the second the point is formed and the nail
straightened and finished sidewise.
The original patent contained a single claim, as follows :
"I claim in finishing nails the process of curving their bodies and beveling
their points, and af terwards forcing them through an open die to shear off
superfluous métal, substantially as and for the purpose specified."
The reissue contaius two claims, the second of which is thus stated :
" (2) The process of ciirving the bodies of nails and beveling their points
by spreading the métal laterally, and afterwards forcing them through an
open die to shear off superfluous métal, substantially as and for the purpose
specified."
We are unable to perceive any essential différence between the two
claims. It is true the second claim of the reissue contains the ex-
pression, "by spreading the métal laterally," which is not found in
terms in the original claim. But the original claim, construed in the
light of the description of the invention given iù the spécification,
clearly implies that the latéral spreading of the métal in the die is
the necessary resuit of the compression given in the first opération of
the finishing. The two claims are therefore, in substance, the same,
and tbe reissue is not invalid, at least in its second claim, as being a
822 FBDEBÀIi BEPORTEB.
departure from the original, within the rule established by the récent
décisions of the suprême court.
The défendant does not claim that its manufacture différa from the
Chase method, except in tbe foUowing particulars : The beveling die
and the groove in the roll are soconstructed that the bevel is stamped
or impressed in the métal; and the métal displaced by the opération,
instead of being spread laterally, is forced partly upwards on each
side and partly forward of the point. The superfluous métal is aft-
erwar'ds sheared off as in the Chase method. The faail is also formed
without longitudinal curvature. We doubt if, in practice, the de-
fendant has succeeded in effeoting either of thèse variations. The
samples of its finished nails in the case show a decided curvature
lengthwise, and in manyof the exhibitsof its nails which havepassed
through the beveling operatioii only, inspection plainly indicates a
latéral spreading of the métal about the point. It is also obvioua
that it i8,mechanically impossible to impress the nail with the bevel-
ing die without at the same time spreading the métal under and on
each side of it, to a greater or less extent, laterally. It is likewise
true that the beveling, no less than the curving, opération of the Chase
method is included in and secured by the patent. We are of opinion
that the defendant's method of beveling the point is a substantial
équivalent of the same opération in the Chase method. Exactly the
same resuit is produced in both cases. The defendant's nail, when
finished, cannot be distinguished in any of its features from the Chaae
nail. Tbe slight différence in the process is immaterial. The two
are in substance identical.
Other défenses are that the Chase invention was antieipated in the
Gooding patent, No. 6,489, dated March 28, 1848, and in the Polsey
patent, No. 62,682, dated March 5, 1867. Thèse inventions were
among the first rude attempts in the art of producing horse-shoe nails
by machinery. The évidence shows that they were never of any real
utility, and were never put to any practical use in making nails. In
the spécifications of the Chase patent the inventer refers to the Pol-
sey patent. No. 62,682, and earefully distinguishes bis invention from
its scope. It is sufficient to remark that we find nothing in either of
thèse patents which describes the simple and effective processes of the
Chase invention.
The entry in each case will be decree for the complainant.
Davis v. Smith.
[Circuit Court, D. MastachuBett». March 18, 1884.)
Patents for Invbntors— Expiration of Patent— Demqbker.
Demurrer to bill for profits acid damages, flled against an infringer one day
before the patent expired, sustained, and bill dismissed, with costs; following
Rcot V. Ry. Go. 105 U. S. 189, and BurOdl v. Uomatoclc, 15 Fjsd. Kep. 396.
Demurrer to Bill.
Coburn é Thacher, for complainant.
6eQ. L. Roberta db Bros., for défendant.
LowBLL, J. This bill, for profits and damages against an infringer
of the plaintiff's patent, was filed one day before the patent expired.
The défendant demurs for want of equity; and his demurrer must
be sustained. No équitable discovery or relief is sought by the bill
beyond or différent from that which is usual in ordinaiy patent causes.
The plaintiff could not expeot the court to grant a restraining order,
which must expire before it could, by reasonable diligence, be served,
nor was one prayed for. An injunction was impossible for want of
time to notify the défendant. The case, therefore, cornes, withijti Root
V. Ry. Co. 105 U. S. 189; Burdell v. Comstock, 15 Fed. Eep. 395;
Betts v.Gallais, L. E. 10 Ilq. 392.
Demurrer sustained. Bill dismissed, with costs. '
Matthews ». Spangbnbeko and another.
(Circuit Court, 8.D. New York. April 25, 1882.)
. Patents for Inventions— Evidence—Motion to Suppress.
Where évidence bas been taken and flled eut of timo, but no motion to sup-
press bas been fïled, it may be considered.
, Samb— KKISS0E No. 9,028— Claims 5 and 7 Voi».
Claims 5 and 7 of reissued letters patent No. 9,028, granted Januarv 6, 1880,
to John Matthews, for soda-water apparatus, are anticipated by letters patent
No. 44,645, granted to A. J. Morse, October 11, 18b'4,.for a syrup fpuniain.
SAME — Ul^IMS 4, 6, 8, AND 9 YAilDr-IlfFBINSEMENT— DiSCLAIMER.
As the parts of the thing patented in the fourth, sixth, eighth, and ninth
claims, whièh hâve been infringed, are deflnitely distinguishablé from the
parts claimed in the tifth and seveuth claims, and the latter claims vrere made
. by. mistake, without any willful default, or intent to defraud or m,islead the
publie, and complainant bas not been unréâsohably négligent in not e'ntering
a disclaimer as to sach parts; be-msy, <)ii enterisg a disclaimerjwaiatajiifl, suit
for infringement, but without costs
In Equity.
Arthur v. Briesen, for plaintiff.
Philip Hathaway, for défendants.
824 TEDBBAIi BBPOBTEB.
Wheeleb, J. Thîs suit is brought upon reîssued letters patent
No, 9,028, dated January 6, 1880, granted to the orator upon the
surrender of original letters patent No. 50,255, dated October 3, 1865,
for soda-water apparatus. The défense relied upon is that the de-
fendants purchased the apparatus used by them of William Gee, who
afterwards settled with the orator; that the patent is void for want
of novelty ; and that they do not inf ringe. The original patent is
not in évidence.
Some of the défendants' évidence was taken and filed out of time.
No motion to suppress it has been filed. The orator objecta to its
considération; and the défendants ask that it be considered, or the
time extended to cover its taking. As no motion to suppress has
been filed, it is allowed tb stand and is considered. Wooater v. Clark,
9 Fed. Ebp. 854, is relied upon by the orator on this point, but in
that case there was a motion to suppress.
The case does not show that the défendants purchased their ap-
paratus of Gee before he settled with the orator, and therefore en-
tirely fails to show that he settled with the orator for the sales to tbe
défendants. They stand by themselves, independently of Gee. Steam
Stone-cutter Co. v. Windsor Manuf'g Co. 17 Blatchf. G. G. 24. That
défense fails for want of proof .
The patent has nine claims. The second and third are not in
controversy. Upon ail the évidence, it is found that the first claim
is not infringed ; that the fif th and seventh are anticipated by letters
patent No. 44,645, dated October 11, 1864, granted to A. J. Morse,
for a syrup fountain; and that the fourth, sixth, eighth, and ninth
are not anticipated and hâve been infringed by the défendant^.
The parts of the thing patented in the fourth, six.th, eighth, and
ninth claims are definitely distinguishable from the parts claimed in
the fiftb and seventh claims; and the orator appears to bave made
tbe latter claims by mistake, supposing himself to be the original
and first inventor of the parts claimed in them, without any willful
default, or intent to defraud or mislead the public, and not to hâve
unreasonably neglected to enter a disclaimer of those parts, thus far.
Therefore he is entitled to maintain this suit, but without costs, on
entering the proper disclaimer. Eev. St. § 4922; Burdett v, Estey,
15 Blatehf. G. G. 349.
On filing a certified copy from the patent-office of the record of a
disclaimer by the orator of what is claimed in the fifth and seventh
claims, let a decree be entered that the fourth, sixth, eighth, and
ninth claims of the patent are valid, that the défendants hâve in-
fringed, and for au injuuctiou and an accouut, without costs.
SUITH V. STANOABO IiADNDBt UACHINEBT CO. 82S
Smith v. Standard Laundby Machineby Co. and others.
{Cireuit Court, 8. D. New T<nh. February 22, 1882.)
Patent— Infringbment — Breach op Contract of Licensb— JuHisDiCTroN op
CiHCurr CouBT.
Wliere the owner of a patent grants an exclusive license to a corporation to
make and sell the article patented during the term of the patent, requiring
sales to be returned monthly and license fées to be paid monthly, and retains
the right to tenninate bywritten notice the license, on failure to make returns
and payments for three consécutive months, after due service of notice of the
termination of the license for failure to make returns, an action for infringe-
ment, in which the corporation sets up in its answer that the license was not
lawfully termipated, and that it had not sold any of the patented articles, and
was not making and selling thcm, involves a question of infringement, and is
cognizable in a fédéral court, although the parties are citlzens of the sâme
State, WiUon v. Sanfm-d, 10 How. 99, and ÉwrteU v. Tilg/man, 99 U. S. 647,
distinguished.
In Equity.
H. O. Atwater, for plaîntiflf.
J. Palmer, for défendants.
Whbblbk, J. There are two et thèse cases, brought upon numer-
ons patents described in the respective bills of complaint, and they
hâve been heard together upon the bills, answers, replications, and
plaintiff's proofs. The plaintiff, by written agreement, dated July 1,
1874, granted an exclusive lioense to the Standard Laundry Ma-
chinery Company, alone and singly, to manufacture and sell laundry
machinery embodying the improvements patented, to the end of the
terms of the patents, the company to make return to the plaintiiï of
ail sales made during each month, on the first of the foUowing month,
and to pay, as a license fee, on or before the tenth of the foUowing
month, a sum equal to 8 par cent, of the gross sales of power ma-
chinery, and 4 per cent, of the gross sales of hand machinery, so
sold. There was a clause in the agreement providing that the plain-
tiff might terminate the license by serving a written notice upon the
company, on failure to make the returns and payments for three
consécutive months. May 13, 1879, the plaintiff served notice of ter-
mination of the license. The défendants continued to use the pat*
ented iùventions, and the plaintiff brought thèse snits for infringe-
mënts after the notice. The parties are oitizens o! the same state,
80 that this court bas no jurisdiction exoept under the patent laws.
The défendants insist that those laws give no jurisdiction to décide
upon the construction or continuance of the agreement for a license,
and that the question of infringement dépends wholly upon the agree-
ment, and rest the case hère wholly upon this question of jurisdiction.
The contract of license itself provides a mode for its own termina-
tion ; and the plaintiff's case shows that it was terminated in that
mode. The défendants do not rest their cases upon the question
whether the contract was terminated or not, but, while they insist
826 rSDBBAIi BBP08TEB.
that it was not lawfuUy terminated, answer "that they hâve not sold
any maobines embodyiog the invention for wbich the complainant
bas obtained letters patent, as alleged in the complaint, and that de-
fendants are not now manufacturing and selling the said machines."
This raises a question of infringement, arising solely under the patent
laws of the United States, of -which the United States courts alono
hâve jurisdiction, without référence to citizenship. The décision of
the question of the terminatibn of the license might obviate this ques-
tion of infringement, and it might not; or, rather, it might furnish a
mode of determining whether there -was any infringement, and it
might leave that question io be détermined otherwise. If the license
was not ended, the acts charged, if doue, would not constitute an in-
fringement; if ended, the question -would remain whether the acts
were. dpne. The question of infringement would always be in the
case until décision. This is différent f rom Wilsonv. Sandford, 10 How.
99, and Hartell v. Tilgkman, 99 U. S. 547, relied upon by défendants.
In each of those cases, as treated by the court, there was but one
question made between the parties to be decided at ail, and that was
a question of contract. Neither of those cases seems to coutrol this,
and this does seem to involve a controversy of which this court bas
jurisdiction.
Let there be a decree for an injunction and an account, according
to the prayer of the bill, with costa.
Smith v. Standabd Latjndby Machinehy Go.
{Circuit Court, S. D. New York. January 1, 1883.)
Patents fob Inventions — iNFBmaEMBNT bt Corpohation— Personal Liabii,-
ITY OF PSESIDENT WHO SWEABS TO ANS-WEB— WaNT OF SERVICE.
Wliere, in an action against a corporation for the infringement of a patent,^
the président, who is named as one of the défendants, but not personally
served, owns ail the stock, and swears to and signs the answer, a gênerai
appearance being entered in the suit for the défendants without naming them,
he is personally liable.
On Exceptions to the Master'a Eeport. The facts appear in the
opinion.
H. Q. Atwater, for complainant.
Justus Palmer, for défendant.
Wheeleb, J. This cause bas now been heard upon the exceptions
to the master's report. Thèse exceptions relate principally to the
liability of the défendant Lewis at ail personally. The grounds of
the exception to bis liability at ail are that he was not so made a party
individually that any decree for relief could be made against him»
and that the allégations of the, bill were not sufficient to be the foun-
BMITH V. STANDARD LAUKDBT UAOHINEBT 00. 827
dation for charging him personally. The bill was brought upon seyeral
patents. In tbe statemeuts of parties tbe défendants are described as
the "Standard Laundry Machinery Company, " a corporation ; William
G. Lewis, président of said company; and Ghanning W. Littlefield,
secretary of said company. A subpœna was prayed, directed to the
Standard Laundry Machinery Company, William G. Lewis, and Ghan-
ning W. Littlefield, défendants. A subpœna was so issued, but was
not served upon Lewis. A solicitor of the court appeared for the de-
fendants without naming them. An answer was filed, stated to be
the answer of the défendants, without naming them, and was signed
by the solicitor as solicitor and counsel for the défendants, without
naming them. The answer was sworn to by Lewis as one of the de-
fendants, the afiSdavit at the foot stated that he was one of the de-
fendants, and he signed it by his individual name.
The appearance of the solicitor for the défendants would of itself
alone be an appearance only for défendants who had in some manner
been served with process. They only were at the time, in fact, de-
fendants. On that appearance the bill could not bave been taken
pro confessa as against Lewis. The subpœna, if it had been served,
however, would only bave required him to appear and answer the
bill. An answer to a bill is made in person. When Lewis answered
this bill he beoame personally, by his own act, a party to the cause
made by the bill. He then became a défendant in court. The ap-
pearance for the défendants stood as an appearance for him as one
of them, and he was before the court as a party. The bill, after
stating the patents, and the exclusive rights of the oratrix to the in-
ventions therein described, alleged that the défendant the Standard
Laundry Machinery Company had and the défendants William G.
Lewis and Ghanning W. Littlefield, as the agents and officers of said
company, had, with full knowledge of the rights of the oratrix, made
and vended machines embodying the invention.
One interrogatory, which Lewis, by note at the foot of the bill,
was required to answer, asked how many machines embodying the
invention had been sold by the défendants or any of them, and
the prayer was that the défendants might answer the premises and
be decreed to account for and pay over ail profits, and damages
in addition. That Lewis was an officer or agent of a corporation
would give him no right to infringe the oratrix's patents, or to with-
hold the fruits of infringement from her, and the statement of that
relation in connection with the charge of infringement would not, in
légal effect, qualify the charge. Under that allégation, and an" inter-
rogatory pointing to him as a défendant charged by it, and required to
answer in respect to the charge, and a prayer for relief on account of
it, he was not only bound to answer as a party, but as a party from
whom relief was sought by decree against him personally. His own
testimony before the master shows that he owned the whole . capital
stock of the défendant corporation; and the report of the master shows
828 FESBIiAL BBPOBTEB.
that he has used the corporation solely for himself, for the purpose of
appearing to be an officer of it, and that its property has been, in
fact, his.
The correctness of this finding has been questioned; but as there
was testimony tending to establish it, and as it was involved with the
question of the liability of the respective défendants in the account-
ing sent to the master, and he does not appear to hâve acted in any
manner improperly or unfairly, his finding cannot, with propriety, be
disturbe'd hère. Bridges v. Sheldon, 18 Blatchf. G. G. 295, 607; S.
G. 7 Fed. Eep. 34. On this finding, Lewis, if an officer or agent,
was sueh for himself, and ail he reeeived in such pretended capacity
he reeeived for himself. An infringer is liable to account for the
profits of the infringement to the owner of the patent, because they
are the avails of thé property of the owner in the hands of the in-
fringer, which he has no right to detain from the owner. Lewis, and
he alone, has thèse profits, which are avails of the property of the
oratrix in his hands, and which he has no right to detain from her.
The pretext of doing business in the name of the corporation is too
flimsy to shield him from accounting for them. During a part of
the time for which the account has been taken he did this business in
the name of an individual, for the reason that the corporation had
been enjoined. This was equally unavaiJing to profcect him from
liability.
Exceptions overruled.
Colgate v. Westbbn Union Tel. Co.
{Circuit Court, 8. D. New York. April 4, 1884.)
APPIilCATION FOB A ReHEAKING— LACHES OF A.PPLICAITT.
An application for a rehearing, based on alleged newly-discovered évidence,
must be denied when it appears that the existence of such évidence was known
to the applicant or his counsel at the time of the former trial, and that the
évidence was not then produced.
Motion for Eehearing.
Betts, Atterbury é Betts, for eomplainant; Wm. D. Shipman and
Frederick H. Betts, of counsel.
Porter, Lowrey, Soren é Stone, for défendant; Geo. Gifford and Wm.
C. Witter, of counsel.
Wallace, J. This is an application by the défendant for a re-
hearing in a cause heard in November, 1878, and in which an inter-
locutory decree was entered inDecember, 1878, adjudging the validity
of the complainant's letters patent, and the infringement thereof by
the défendant, and that eomplainant recover the profits of the défend-
ant derived bysuch infringement. In January, 1879, the complain-
COLGATE V. 'WEST. tJ. TEL. 00. 829
ant applied for a final injunction against the défendant to enjoin the
infringement, which was granted as to any further use of the inven-
tion, but as to certain uses to whioh it had already been applied the
question of issuing a perpétuai injunction was postponed, to await an
accounting and application for a final decree. Thereafter the parties
entered into negotiations which resulted in defendant's taking a license
of complainant and paying $100,000 for a release. The application is
made on the ground of newly-discovered évidence, which shows the
withdrawal of an application for a patent. At the hearing of the
cause the défense of abandonment of the invention was relied on by
the défendant, and was considered in the opinion delivered by the
court, and overruled in part upon the view jhat the application for a
patent had never been withdrawn by the inventor.
Upon the hearing it was stated by counsel for the complainant that
a letter had shortly before been found by him, in looking over the files
of the patent-office, written by the inventor, formally withdrawing the
application, and this fact was fuUy brought to the attention of the de-
fendant's counsel. Whether it was assumed by defendant's counsel
that the fact was not of sufiicient importance to be incorporated into
the proofs, or whether they supposed it would be treated by the court
as a concededfact, is not material, in view of the décision and opinion
of the court rendered within a few days after the hearing, by which
it was plainly indicated that the fact was a material one, and was not
in the proofs. If under thèse circumstances an application had been
promptly made for leave to reopen the proofs, and for a rehearing, it
would hâve been incumbent upon the défendant to satisfy the court
that the évidence could not hâve been obtained by the exercise of
reasonable diligence, and introduced before the hearing. Baker v.
Whiting, 1 Story, 218; Jenkins v. Eldridge, 3 Story, 299. It is not
necessary to search for authorities outside the décisions of this court
maintaining the rule that a rehearing will be denied if the non-pro-
duction of the évidence is attributable to the lâches of the party or
bis counsel. Ruggles v. Eddy, 11 Blatchf. 624, 529; India-rubher
Co. v. Phelps, 8 Blatchf. 85; Hitchcock v. Tremaine, 9 Blatchf. 550;
Page v. Holmes Burglar Alarm Go. 18 Blatchf. 118 ; S. G. 2 Fed. Eep.
330. But, after the expiration of over three years since the discov-
ery of the évidence, whatever might hâve been the resuit of an appli-
cation if it had then been made, it would hâve appealed much more
forcibly to the judicial discrétion than can beexpected now, after more
than three years hâve elapsed, after a further hearing has been had,
and a perpétuai injunction ordered against the défendant, and after
the défendant has recognized the complainant's rights by compro-
mising for past use, and taking a license for the future use of the in-
vention, and for a considérable period has been enjoying the use of
the invention under the license.
The law of lâches, as applied to motions for new trials or rehear-
ings, is founded on a salutary policy. It is for the interest of tbe
8S0 ÏEDEBÀli BEFOBTEB.
public, as well as of litigants, that there should be an end of litiga-
tion, and that efforts to reopen controversies by unsuccessful parties,
after they bave had a fullopportunityto be heard, and a earefui iiear-
ing and considération, should be disoouraged.
A rehearing is denied.
Westoott and others v. Eude and others.
{Circuit Court, B. Indiana. April 1, 1884.)
1. Patents fob Inventions— AccouNTma beforb Mastbr— Evidbncb.
In an account before a master, évidence of paymentsfor past infringéinent,
for the purpose of ascertaining the amount which should be paid by tbe de-
fendant, is incompétent. To admit it is contrary to tho maxim, Inter altos
acta, etc.
2. Samb— Balb of Licbnsbs— Mbasubb of Damagbs.
When the sale of licenses by the patentée has been sufBcient to estabJish a
priée for such licenses, that priée should be the measure of his damages against
an infringer ; but a royalty or iicense fee, to be binding on a stranger to the
licenses which established it, must be uniform.
3. Same— Single Lioensb— Maeket Pbicb.
Proof of a single Iicense is not sufflcient to establish a market priée.
4. Samb — Sevbkal Claims — RoTAi.Tr.
In respect to two or more claims in a patent, each of value and distinct from
the other, one cannot equal both or ail in value, any more than, in mathematics,
a part can equal the whule. A licensee may, if he choose, bind himself to pay
the same price, whether he use the entire invention or a part only; but at the
same time he acquires the right to use ail, and so his agreement may not be
unreasonable ; but if, as against an infringer, such a Iicense can hâve any
force, reasonably, it must be in the way only of establishing a royalty for the
entire invention.
Exceptions to Master's Eeport.
H. G. Fox and Wood é Boyd, for complainants.
Stem é Peck, for défendants.
WooDS, J. The exceptions filed are numeroas, but, passing by
others, the court will consider only those which bring into question
the measure of the damages assessed. Upon this point the master
says : "Plaintiffs waive ail claims for profits, and rely upon the proofs
produced as establishing a fixed Iicense or royalty as the measure of
damages;" and, after giving an abstract of the testimony of the four
witnesses who were examined on the subjeet, the report proceeds to
say :
"It is very difflcult to détermine from this évidence whether it makes proof
of such an established royalty or Iicense fee as furnishes a crlterion upon
which to estimate complainant's damages. The owner of a patent is granted
a monopoly. He may choose to reserve the right to use his invention exclu-
sively to himself, and to make and sell machines, keeping ail other manu-
facturers out of compétition. He may enjoin infringers. He has the right
to flx a reasonable Iicense fee or royalty to be paid by manufacturers who use
his invention in making machines. And if flxed and reasonable, and paid
WESXÇpiT p, RuijB, 831
by those who use the invention, such fee or xoyalty is a çriterion upon which
a computation or assessment of damages may be based. It is pro\^ea that the
Wayne Agricultural Company paid the royalty of $1 for one-horse machines,
and $2 for two-hoiseï machines, for fouryears; a sum which, in the absence of
évidence to the contrary, may be regarded as reasonable. Mast & Co,,paid
between $2,000 and $3,000 in cash, and conceded privilèges, which Westcott
estimâtes to hâve been worth as much more, for infringement. It is true,
Westcott threatened suit, and, when money is paid under threat of suit merely
as the priée of peace, it furnishes no évidence of the amountor value of the real
claim in dispute, but the settlement made shows that Westcott was paid'some-
thing substantial for the infringement, and that the fear of litigation was a
small élément of the settlement itself. Westcott says that he arrivedat thé
amount by his estimate of the number of the machines made by Mast '& Co.,
and other considérations which areexplàined in Mast's déposition. Mast
says no estimate was made of the number of machines. Westcott says he gave
lieenses, like the one attached to his déposition, to Mast & Co. and to Englisb
& Over. Mast was examined, but not iuterrogated on that point. Mr. En-
glish, the active man in the firm of English & Over, says he does not recoUect
whether they took a license or not.
"It is with considérable reluctance that I ha.ve come to the conclusion that
the évidence furnishes proof of a license fee, which may be taken as a basis
for damages. The défendants hâve undoubtedly infringed complainants' jn-
veution ; and the machines made by them, which are mentioned in the évi-
dence, were ail made after this suit was brought. As to the point made, that
the évidence does not show how many of the machines made by défendants
infringed one and how many infringed both claims of plaihtiff, the master
is of the opinion that the terms of the license were the same in either case,
and the same fee was charged whether one or more claims were infringed*
I therefore report and flnd that the défendants haye made and spld 800 in-
fringing one-horse machines, and that plaintiff's. damages on that account
"are $800, and that défendants hâve made and sold 800 infringing two-horse
machines, and that plaintiff's damages on that accoUnt are $1,600, making
$2,400, his damages in fuU."
The clause in the license referred to by the master is of the follow-
ing ténor:
"Third. The pai-ty of the second part agrées to pay two dollars as a license
fee npon every two-horse drill or seeder, and the sum of one dollar on every
one-horse drill or seeder, manufactured by said party of the second part, con-
taining any of the patented improvements; provided, that if the said fee be
paid upon the days provided herein for semi-annual returns, or within ten
days thereafter, a discount of fifty per cent, shall be made f rom said fee for
prompt payment."
There is probably no reason to question the gênerai principles
enunciated by the master in respect to the rights of patentées in their
inventions; but the court does not concur, in ail respects, with the
master's application of them in this case, nor with the conclusion
reached. Some of the facts found are not, in the judgment of the
court, supporte.d by the évidence. Some items of évidence were con-
sidered by the master, which, in the opinion of the court, were not
admissible, and which, therefore, should bave been allowed no weight
whateyer.
. In respect to the royalty paid by the Wayne Agricultural Conipany,
-Westcott,; the only witness to the point, testified this :
832 FSDBBAIi BEPOBTEB.
"The licensees to whom thèse licenses were given paid the fées as stipu-
lated. The Wayne Agricultural Company paid for four years, since which
time they hâve paid nothing, their excuse being that they claimed to hâve
bought an interest in the patent. We sued them in this court, and the court
decided that they had no title to the patent, and then they agreed to arbitrate
with us and the suit was dismissed."
This évidence does not show the payment of fées as stated by the
master. It is left uncertain whether or not the fées paid "for four
years" were at the rate of one and two dollars for a machine, or 50
per cent, of those sums, The fair inference, perhaps, is that the
Wayne Agricultural Company did for four years manufacture drills
under the license, though it is not entirely clear that the license was
not issued after or near the close of that period, se as to make the
transaction in reality a settlement for infringements. This is cer-
tainly so in respect to the other parties named, who, if they received
licenses at ail, which is doubtful, received them as évidence of settle-
ments, and thèse settlements, it is shown, were made either under
express threats, or the fear, of suits for infringement. If for a time
the Wayne Agricultural Company made the drills under a license,
the manufacture was afterwards continued under a différent claim of
right, and when that claim had been overruled by the court, instead of
settling for the infringement on the terms of the license, tbe company
obtained an arbitration, the result of which has not been shown.
The first inquiry is, whether or not the proof in respect to pay-
ments for infringements was admissible, and ought to hâve been con-
sidered by the master at ail. I know of no case in which it has been
decided that such évidence is compétent, and, upon principle, am
not able to see how it can be ; on the contrary, it seems to me clear
that it ought not to be received. Proof of license fées, charged and
paid before use for the right to use an invention, is admissible upon
the same theory that proof of sales in open market of any market-
able commodity is compétent; because it shows, or tends to show, a
market price. But settlements for past use of an invention cannot
be brought within the rule, because inconsistent with the principle
on which the rule rests. The infringer, or one who is accused of
infringement, is, from the necéssity of the situation, under compul-
sion to make compensation as demanded, or to take the risk of a
suit; and how much his action, in a particular case of settlement,
may hâve been influenced by this or other spécial considérations, it is
impossible for the master or the court to détermine, and therefore the
inquiry should not be entered upon. The only way to escape the in-
quiry is to exclude the évidence. To admit it is contrary to the
maxim, Inter alios acta, etc. It involves an attempt to résolve one
doubt or difficulty by another. Litem lite solvit. There are doubt-
less reported cases in which it appears that such évidence was re-
ceived and considered, but generally this bas been dons without objec-
tion, and uniformly (so far as I know) without a judicial déclaration
WBSTCOTT r. BUDB. 833
or décision that it was pjoper. In the opinion of the suprême court in
Paeket Co v. Sickles, 19 Wall. 611, the raie is reaffirmed as laid down
in Seymour v McCormick, 16 How. 480, "that in suits at law for in.
fringement of patente, when the sale of licenses by the patentée had
been sufficient to establieh a prioe for such licenses, that priée should
be taken as the measure of his damages againat the infringer." "The
rule thus declared," it is added, "has remained the established crite-
rion of damages in cases to whioh it was applicable ever since;" and
further on in the opinion it is said, and it affords a clear interpréta-
tion of the rule in respect to the point now mooted: "In such a case
nothing is more reasonable than that the price iixed by the patentes
for the use of his invention, in his dealings with others, and sub-
mitted to by them before using it, should govern." This, it is true,
is the rule at law, but the complainants, waiving their right in equity
to claim an account of profits, hâve invoked the same rule hère, and
must abide by it as it is. See, also, Black v. Mumon, 14 Blatchf.
268; Gremleaf v. Yale Lock Manufg Co. 17 Blatehf. 253; 3 Suth.
Dam. 601-607; lGreeni.Ev.§ 174; Whart. Ev. 1199; Abb.Tr.Ev.
188, 189; Matthews v. Spangenberg, 14 Pbd. Eep. 350. It follows
that the proof of damages made in this case, excepting that in référ-
ence to the license granted to the Wayne Agrieultural Company, must
be rejected, and should bave been disregarded by the master; and,
this being donc, does there remain évidence sufficient to support the
master's conclusion? It seems probable that the master himself
wonid hâve thought not ; since, as it was, he came to that conclusion
"with considérable reluctance."
The rule, as already stated, requires "a sale of licenses" "sufficient
to establish a price for such licenses." "A royalty, in order to be
binding on a étranger to the licenses whioh established it, must be a
uniform royalty." Walk. Pat. 390. Thèse and the like expressions
and définitions found in the cases and text-books, imply that proof
of a single license is not sufficient ; and if under some circumstances
such proof might be deemed adéquate, that in this instance is not of
such clear and unequivocal character as to give it such weight. Proc-
tor Y. Brill, 4 Ped. Bep. 415; Judson v. Bradford, 3 Ban. & A. 539;
Black V. Munson, 2 Ban. & A. 623. It is true, in a sensé, doubt-
less, that the owner of an invention has a right to fix his price upon
it; but to constitute évidence against an infringer he must hâve done
it "in his dealings with others," and not merely in a form of license
which he was willing to grant. It is, as it appears to me, entirely
inadmissible, at law or in equity, that a patentée may, by inserting in
his licenses a stipulation for a certain royalty, with a proviso that haîf
that sum shall be received in fuU, in case of prompt payment, acquire
a right to demand the entire sum of an infringer. If he can arbi-
trarily make such a discrimination, he may as well make the ratio
three to one, or in any other proportion. The question is, what is a
reasonable royalty ? The laws of the land fix the rates of interest for
T.19,no.ll— 53
834 SSmai-li BiBPOBTSBi
the forbearance of mottey, and if ît be possible to make a discrîmîna-
tion against infringers of patents over prompt-payiilg licensees greater
than lawful interest, (excepi as may ba done by the ooarts under the
statutory provision for treble damages,) it must be dooe, as it seems
to me, upon some compétent évidence, other than an arbitrary clause
in a license or licenses, however many of them may hâve been issued.
The same may be said in référence to the clause in the license which
requires that the specified royalty shall be paid for every drill "con-
taining any of the patented improvements." This, as it seems to me,
affords no proof, certainly not conclusive proof, against an infringer
that he should pay the entire royalty named in the license for infring-
ing only one of two or more olaims of a patent, unless the one in-
fringed be shown to be the only ciaim -wbich bas or had any value,
or unless the différent daims be substantially the same.
In respect to two or more claims in a patent,, each of value and dis-
tinct from the other, one cannot equal both or ail in value any more
than in mathematics a part can èqual the whole. The licensee may,
if he choose, bind himself to pay the same price, whether he use the
entire invention or a part only ; but at the same time he acquires the
right to use ail, and so bis agreement may not be unreasonable ; but
if, as against an infringer, sucb a license can bave any force, reason-
ably, it must be in the way only of establishing a royalty for the en-
tire invention. This view is in aocordance with authority.
In Birdsallv. Coolidge, 93 U. S. 64, it appears that the alleged iur
fringement was of one only of three claims in the letters patent, and
the court says : "Still it is obvious that there cannot be any one rule
of damages prescribed which will apply in ail cases, even -when it is
conceded that the finding must belimited toactual damages. * * *
Where the patented improvement bas been used only to a limited es-
tent and for a short time, • * ♦ the jury should find less than
the amount of the license fee," See, also, Proctor v. BriU, supra;
Wooster y. Simonson, 16 Fed. Eep. 680; Ruggles v. Eddy, 2 Ban. &
A. 627.
Without further évidence, the plaintiff is entitled to nominal dam-
ages only; but, that there may not be a failure of justice, the case is
remanded to the master, with direction to admit further évidence by
each party, if offered, and to report the same and bis conclusions.
.■HBLO V. iBBUiro. 635
FiEiiiS V. Ibelakd and otbers.
[Circuit Court, N. D. New Yvrk. April 6, 1884.)
Patent— Infiiingement — Glove-Fastbnbiîs. :
TJie case of Fidd v. Vomeau, 17 O. Q. 568, foUowed; holding that the com-
plainant's patent for a glove-faatener, consisting of an automatic wire spiing,
18 uot infringed by a device consisting of stiil arms pivoted at oue end.
In Equity.
Ewjene N. Elliot,îor com-pl&m&nt.
James M. Dtidley, for défendants.
GoxE, J. The complainant bas a patent for an improvement in
glove-fastenings. The claim is in the following words : "The com-
bination, substantially as described, of a spring, A, with the splif
portion, B, of a glove, for the purpose specified." In Field v. Comeau,
17 0. Gr. 568, Judge Wheelee restricted this claim to the particular
style of spring described in ; the spécification and drawings. That
décision is controUing, No broader construction oan now be given to
the patent. The question of infringement, therefore, alone remains
to be considered. .;
The oomplainant's spring is made of a single pièce of wire and is
automatic and continuons in its opération. When the spring is in
repose the arms are together and overlap. When drawn ,apart they
will immediately fly back if released. The défendants* deyice, on the
contrary, is composed of two stiff arms pivoted at one end. A spring
is riveted to one arm which connects, at its free end, with a link
fastened to the end of the other. When the arms are open, and by
pressure upon them the link is brought above the pivot, the spring
acts, and the arms corne together. At right angles the arms remain
open and the spring does not begin to operate in closing them until
they hâve been brought to an angle of about 45 degrees. The points
of différence between the two devices are many and radical. But the
reasoning of the Comeau Case seems conclusive upon this question,
also. The spring which was there held not to infringe is almost the
exact counterpart of the défendants' spring. They differ only in
minute and unimportant particulars. The one opérâtes on a cam,
the other on a link; with this exception they are alike. In speaking
of the défendants' spring in that case the learned judge uses language
which would be equally applicable hère. He says :
"The form of the défendants' spring is différent from the orator's, its mode
of opération is différent, and the resuit of its opération is soraewhat différent.
It cannot be said to be the same as the orator's, or to be substantially like the
orator's. Each got the idea of closing the wrists of gloves by means of springs
from others. The orator carries out the idea in his mode, and the défend-
ants in theirs, and, as neither bas eontrol of anything but the particular mode,
neither can justly say that the other uses his mode."
The two cases cannot be sucoessfully distinguished.
There should be a decree for the défendants, with costs.
836 fBDEBAIi ItEPOBIEB.
The Woethington and Davis.
(DUtriet Court, E. J). Miehigan. April 30, 1883.)
1. CoiiUsiON — RuNNmo into Vbsskii at Anchoe — Peesdmption ot Pault.
The presumtion of f ault arising f rom running into a vessel at anchor may bu
rebutted by showing that the moving vessel exercised ail reasonable care upon
her part, and that the collision was an inévitable accident; or by showing that
the f ault is with the anchored vessel in failing to use proper précautions.
2. Samb— Anchobagb m St. Clair Rivkr — Duïy op Vessel.
Anchorage in St. Clair river is not necessarily improper because the channel
is comparatively narrow, and vessels are frequently passing and repassing, if
room be leit lor vessels and tows to pass in safety. A vessel so anchored, how-
ever, is hound to keep a watch, and not to allow her sails to obstruct or obscure
the view of her anchor light.
3. Bame — Insobutable Fault — Libkl Dibmisbbb.
In cases of inscrutable fault the libel should be dismissed.
In Admiralty.
This was a libel for a collision between the scliooner Gladstone and
the schooner Davis, in tow of the propeller Worthington, which oc-
curred on the night of July 26, 1881, on the St. Clair river, near Her-
son's island. The Gladstone was bound on a voyage from Détroit to
the port of Golden Valley, Ontario. She left Détroit in the afternoon,
under sail, reached the St. Clair river, and sailed up to a point a little
above the place of collision. The wind, which had been light from
the west or north-west during the afternoon and evening, about 9
o'clock failed altogether. The schooner, being unable to proceed fur-
ther, came to anchor in the channel of the St. Clair river,, somewhat
upon the Canadian side. After coming to anchor, her riding lights
were taken in, and a bright anchor light placed in her port fore-rig-
ging, about 20 feet from the deck. For ail that appears, this light
vras burning brightly up to the time of the collision. A lookout was
also stationed upon the deck to watch approaching vessels. The
night was clear, and lights could easily be seen at the usual distance.
Some time after 10 o'clock the schooner Davis, which was the last of
three vessels in tow of the propeller Worthington, bound down the
river, came into collision with the Gladstone, breaking her jib-boom,
bowsprit, and cat-head, and damaging her port bow.
Moore (è Canfield,toï\ih%\&TA. /
H. D. Goulder, for claimant.
Bkown, J. It is chargea in the libel that the propeller was in fault
in running too close to the Gladstone, and that the schooner Davis
was in fault in not keeping a sharp lookout, and in not porting her
wheel Bufficiently to keep in the wake of the propeller, and thus avoid
coming in contact with the Gladstone. Separate answers were filed
on the part of the propeller and the Davis, the same counsel repre-
senting both vessels. Upon the hearing, however, there was no évi-
dence showing the Davis to be in fault, as she appeared to hâve done
the best she could in following the Worthington. The case against
THE WOBTHINGTON AND DAVIS. g37
her was practically abandoned. The answer on the part of the pro-
~ peller avers that the wind was blowing a stiff breeze from the westward ;
that the Gladstone had her foresail and mainsail set, and was lying
athwart the channel; dénies that the schooner had a proper anchor
watch ; and avers that if she had any light it was so placed as to be
obscured by the sails from the view of the vessels coming down the
river. It was claimed, furthermore, that before discovering the Glad-
stone another propeller, the Oneida, had just passed the Worthing-
ton, and wâs ahead upon the same course and in the channel ; and
that the officers in charge of the Worthington, before discovering any
light upon the Gladstone, saw the Oneida suddenly sheer to the west-
ward, whereupon the Worthington put her wheel hard a-port, and
changed her course as much to stafboard as it safely could be; and that
it was only when they had approached within about 200 or 300 feet
that her ofQcers and crew for the first time saw the light of the Glad-
stone. It was also averred that when the Worthington ported she
gave the proper signal to the tow, and that the first vessel passed
clear, the second within a few feet of the Gladstone's jib-boom, and
the third vessel, the Davis, struck and did some injury to the Glad-
stone.
There can be no doubt of the proposition that, as the collision oc-
curred with an anchored vessel, the burden of proof is upon the Wor-
thington to show herself guiltless of fault. She may do this by show-
ing that she exercised ail reasonable care upon her part, and that the
collision was the resuit of an inévitable accident, or, as is done in this
case, by showing that the fault is with the schooner in herself failing
to observe the proper précautions. The first fault charged against the
Gladstone is that she was lying in an improper, unusual, and unsafe
place. In this connection I can do little more tban repeat what was
said by Judge Longyeae in the case of The Masters and Raynor, 1
Brown, Adm. 342, that anehorage in the St. Clair river is not neces-
sarily improper because the channel is comparatively narrow, and
vessels are frequently pasaing and repassing, if room be left for vessels
and tows to pass in safety. It always bas been the custom for sailing
vessels, navigating the Détroit and St. Clair rivers, to come to anchor
in the channel, and I am not disposed to say such custom is un-
reasonable, though collisions are not infrequentlyoccasionedthereby;
and in the increasing magnitude of commerce we may be ultimately
compelled to adopt a différent rule; but I think it much more prudent
for vessels to anchor as near the shore as the water will permit. Some-
times, however, — and that is claimed in this case, — the wind falls so
suddenly that the vessel has no option but to drop her anchor where
the wind leaves her. It would seem, however, that even in such a case
something might be done, with the aid of the current and her rudders,
to get the vessel doser into shore; but as there was undoubtedly suf-
ficient room left for tows to pass the Gladstone upon the American
side, I am not disposed to criticise her anehorage at this spot.
838 rEDEEAIi EEPOETEB.
But, whether anchoring there from necessîty or choice, I hâve no
doubt that she is bound to exercise a greater degree of care and dili-
gence in respect to her light and her anchor -watch than would be requi-
site in case she were anchored eut of the usual path of vessels. I am
not disposed tO say that she was in fault for having her sails up, if she
h ad otherwise complied with the statute in having a light which could
be readily seen by vessels coming up and down the river. The labor
of getting a vessel under way would undoubtedly be much lessened by
having her sails already hoisted, in case a favorable wind should
spring up, and if the light be properly displayed I do not see that tho
liability to collision would be thereby enhanced. This was the opinion
of Judge WiLKiNS in the case of The Planet, 1 Brown, Adm. 124. In
this casel cannot see that the furlfngof the sails would hâve assisted
the schooner any in enabling her to give way- to the descending tow.
The difficulty in the case turnsupon the question whether the Glad-
stone displayed a proper anchor light to approaching vessels. There
seems to be no question that she did display a bright light about
20 feet from her deck, and it appears to hâve been set in her port
fore-rigging, but it certainly did not comply with rule 10, Eev. St. §
4233, which requires that ail vessels, when at anchor in roadsteads or
fair-ways, shall exhibit, where it can best be seen, a white light, so
constructed as to show a elear, uniform, and unbroken light, visible
ail around the horizon. Now, this light, while complying with the law
in other respects, clearly was not visible to a person approaching from
the starboard side of the vessel back of the foremast, and in that re-
spect there can be no question that the schooner was in fault, and the
only remaining inquiry is whether such fault contributed to this col-
lision. Upon the part of the schooner it is averred that the wind was
north-west, and that she was heading a little toward the Canada shore,
and hence that her light could be clearly visible to ail vessels coming
down the stream. Upon the other hand there is a large amount of
testimony tending to show that there was a brisk wind from the
south-west, and that the vessel was lying with her head canting towards
the American shore, in a position which might at least hâve obscured
lier light to a propeller coming down the stream. This testimony is
corroborated by that of the witness Kirby, who swears that the injury
was done by the wrenching of her jib-boom and her bowsprit from star-
board to port. If her huU was struck at ail it would appear to bave
been a mère glancing blow, and that the principal injury was done
by the jib-boom catehing the mast of the Davis and breaking it off.
This, with the wrenching of the bowsprit, infiicted the only serions
da,mage to the schooner. It seems, too, that the Oneida, which
preceded, the Worthington down the river a very short distance, did
not observe her light until she was very near to her, and that her at-
tention was first called to her, not by seeing the light direotly, but by
seeing the loom of the light upon her sails. The men upon the Wor-
thington also swore that they did not see her light, and ported only be-
THE WOETHINGTON ÀND DAVIS. 839
cause the Oneida ported, and that the light was first revealed when
they had approached very near to the schooner. Had the Worthing-
ton seen this light at a greater distance, it would undùubtedly hâve
been her duty to port sooner ; but if we are to believe the testimony of
her officers and crew, and those of hertow, the Gladstone's light must
hâve been concealed either by the Oneida (in which case the accident
as to the propeller would hâve been inévitable) or by the sails of the
Gladstone. In my opinion the propeller bas rebutted the presump-
tion of fault which attached to her colliding with a vessel at anchor,
and put it ûpon the Gladstone, although the case is an exceedingly
close one.
If the case be not one of fault on the part of the Gladstone, it is,
to my mind at least, a case of inscrutable fault, and the question re-
mains to be considered what is the measure of liability in respect to
collisions of this character. Cases of inscrutable fault are those
wherein the court can see that a fault has been committed, but is
unable, from the confliet of testimony, or otherwise, to locate it.
Since the introduction of colored lights and fog signais thèse cases
are of rare occurrence, and the measure of liability is still an un-
settled question. At common law the plaintiff is bound to make out
his case by a prépondérance of testimony, and if the question of fault
is left in doubt the défendant is entitled to a verdict, and the loss
rests wherô it falls. This is also the rule in the English admiralty
and vice-admiralty courts. Thé Cathenne of Dover, 2 Hagg. 154;
The Maid of Auckland, 6 Notes Cas. 240; The RocJcaway, 2 Stew.
Vice Adm. 129; The City of London, Swab. 800, 302. The laws of
Oleron, of Wisbuy, and the Marine Ordinance of Louis XVI., made no
distinction between cases of mutual fault, inscrutable fault, and in-
évitable accident, but divided the damages in every case where the
collision was not the fault of one party only. This rule was probably
adopted on aceount of the diffioulty of determining to which vessel
the fault was imputable. It has received the sanction of Emerigon,
Valin, Pothier, Grotius, and most, if not ail, of the continental au-
thors upon the subject. It has been incorporated into the French
Commercial Code, but in the German Code no allusion whatever is
made to this class of cases. The question has never been definitely
settled by the suprême court of the United States, although in the
opinion of Mr. Justice Swayne, in the case of The Grâce Girdler, 7
Wall. 196, there is a dictum to the effect that "where there is a rea-
sonable doubt as to which party is to blâme, the loss must be sus-
tained by the party on whom it has fallen;" citing The Catherine of
Dover, 2 Hagg. 154. The point does not seem to hâve been argued
by counsel, and the case was disposed of as one of inévitable acci-
dent. The district courts are about equally divided in opinion The
Scioto,Da vies, 369; The John Henry, 3 Ware, 264:; The David Dows,
16 Fed. Eep. 154. Contra, The Kallisto, 2 Hughes, 128 ; The Breezt,
6 Ben. 14; The Summii, 2 Curt. 150; The Cherokee, 15 Fed. Eeï>.
840 FEDERAL REPORTEE,
119; The Amanda Powell, 14 Fed. Eep. 486. Although I know of
one reported case in whioh the rule was actually applied, (Lucas v.
The Thomas Swan, Newb. 158,) it has apparently met witn the ap-
proval of Mr. Justice Stoky in his work upon Bailments, (sections
608, 609,) Chancellor Kent, (3 Kent, Comm. 231,) Judge Conkling,
(1 Conk. Adm. 378,) and most of the American elementary writers,
though none of them pronounce a decided opinion of their own.
Fland. Mar. Law. §§ 367, 358 ; Bouv. Law Dict. tit. "Collision." The
question received, however, its most elaborate discussion by Judge
Hall, of the Northern district of New York, in the case of The Cornet,
9 Blatchf. 323 and the continental rule was adopted without hésita-
tion.
Thèse authorities are undoubtedly entitled to great respect, but it
will be observed that in most of them there is no discussion of the
question as an original proposition, and the rule is apparently adopted
in déférence to the continental doctrine. Conceding that the mari-
time law of continental Europe favors a division of damages, does it
necessarily f oUow that the law as administered in this conntry should
be the same? I think net. While the maritime Codes of the dif-
férent countries hâve undoubtedly many features in common, there
are probably no two exactly alike. A référence to the provisions
upon the subject of collision will show that the German law differs in
many particulars, notably in regard to the division of damages, from
the French, and that again from the Dutch and Eussian. Indeed,
the ancient Codes and writers, cited by the learned judge in the case
of The Cornet, declared that in cases of inévitable accident the dam-
ages shall be divided; yet nothing is better settled in the maritime
law of England and America, than that in such case the loss shall
rest where it falls. Uniformity, at least, does not require us to adopt
the rule of division in cases of inserutable fault. In short, the mar-
itime law is not international, exoept in a limited sensé. It inevita-
bly takes on a local ooloring conformable to the habits and traditions
of the différent countries in which it is administered.
There are certain fundamental principles of justice adopted by the
English and American courts which bave become maxims of juris-
prudence, and are equally binding in cases of common law, equity,
and admiralty jurisdiction. Among thèse is that which prohibits a
person being deprived of his liberty or property without being proved
guilty of some fault or dereliction, Under the terms"due process of
law" or "law of the land" provisions of similar import are inserted in
ail our constitutions. "By the law of the land," said Mr. Webster,
in the Dartmouth Collège Case, 4 Wheat. 518, "is most clearly intended
the gênerai law which hears before it condemns, which proceeds upon
inquiry, and renders judgment only after trial. The meaning is that
every citizen shall hold his life, liberty, property, and immunities
under the protection of gênerai rules which govern society." Every
person is presumed innocent, even of fault, and is entitled to rest
THIi BOUTHFIEIjD. S41
upon that presumption until shown to be guilty; and the whole object
of our judicial maohinery is to détermine by compétent proofs who has
committed a crime, perpetrated a wrong, or broken a contract. If
chargea witfa a crime, the accused must be proven guilty beyond a
reasonable doubt. If "damages are sought, the plaintiff, the actor,
must always make out bis case by at least a prépondérance of évi-
dence. If the évidence is clearly balanced, it is the duty of the court
to dismiss the proceedings. I know of no reason why this same rule
should not obtain in collision cases. The difficulty of proof is usually
not greater; the injustice of a false step is no less. Indeed, they are
peculiarly cases wherein fault should be established and located, since
the losB, in a large major ity of cases, falls upon persons guiltless of
ail Personal blâme. So strongly has this considération appealed to
the good sensé of the mercantile world, that, by the laws of most eivil-
ized countries, the liability of an innocent owner is limited to the value
of bis interest in the offending ship and her freight. The doctrine of
division in cases of mutual fault, though an infringement upon the
common law, is not an exception, and hardly a qualification, of the
rule requiring the libelant to establish his case^. It is only a simpli-
fication of the doctrine of contributory négligence, — a measure of dam-
ages rather than a method of proof, and the only practicable mode of
doing justice in cases of mutual fault. For thèse reasons my own
opinion is decidedly in favor of the English rule adopted by Mr.
Justice SwAYNB in The Grâce Qirdler.
The libel will be dismissed, but, as the case is one of very grave
doubt, no costs will be awarded to either party.
The Southfield.*
(District Oourt, B. D. Neie York. January 29, 1884.)
Damage to Cahal-Boat by Suction and Surgb OaCsbd bt Passino Ferht-
BoAT— Evidence.
In an action against the ferry-boat S., to recover damages for injuries caused
by the suction and surge produced by the passing ferry-boat to a canal-boat
tnoored in a proper place at a bulk-head at Staten island, hdd, that, upon the
évidence, the injuries were caused by the ferir-boat's passing at an unneces-
sary rate of speed, and that the ferry-boat was liable for the damage sustamed.
In Admiralty.
E. O. Davis, for libelant.
Macfarland, Reynolds é Lowrey, for claimants.
Bbnediot, J. This action is brought by the owners of the oanal-
boat Annie G. Eaeger, to recover for injuries oaused to that boat by
iReported by R. D. & Wyllys Benedict. of the New York bar.
842 FECEBAIi BSFO&TSB.
the suction and surge made by the ferry -boat Southfield, in passing
the canal-boat on the morning of the eighth of May, 1882. Tho
canal-boat was moored at the bulk-head, between Stapleton and the
Wrecker's pier, on Staten island, and was there discharging a cargo
of malt. She lay with her bow to the northward, with her stern some
25 f eet from the line of the north side of the Wrecker's pier, and was
made fast to the bulk-head by a four-inch bow-line, a four-inch stern-
line, and a three-inch breast-line, ail sound and strong. The South-
field was engaged in making regular trips upon the Staten island
ferry, and on the trip in question went, according to the answer, from
New York direct to Clifton, but according to her proof, from New York
to Tompkinsville and then to Clifton, without stopping at Stapleton.
As she passed the place where the libelant's boat was moored she
created a suction and surge of the water which broke the stern-line
and the breast-line of the canal-boat, carried the boat herself out some
25 f eet from the bulk-head, and. then cast her back with suoh violence
as to throw down persons upon her deck, and do considérable injury
to the boat. The place where the canal-boat was moored is a place
in common use l'or discharging of boats, where boats like the libel-
ant's can lie without injury, provided the ferry-boats use moderate
speed when passing at low tide. Upon the évidence it is impossible
to attribute the injury of the canal-boat to any neglect on her part,
either in selecting an.improper place to disoharge or in omitting rea-
sonable caution in respect to her mooring. It is also beyond dispute
that the immédiate cause of the injury was the suction and surge
created by the Southfield as she passed down to Clifton on the 6
o'clock morning trip from New York, the tide being then low. The
inquiry, therefore, is whether this suction and surge is attributable to
any neglect of duty on the part of the Southfield. The law appli-
cable in cases of this description is not in doubt. It is thus stated in
the case of The Morrisania, 13 Blatchf. 512:
"The undoubted right o£ the steam-boat to the navigation of the river is
subject to the restriction that it must be exercised in a reasonable and care-
ful manner, and do no injury to others that care and prudence may avoid."
By the law, it was the duty of the Southfield, in passing the libel-
ant's boat, to avoid eiidangering that boat by her suction, provided
that could be done by the exercise of reasonable care in respect to
speed. The feriry^boat had the right to pass from Tompkinsville to
Clifton at low as well as at high water, and she had the right to sé-
lect Buch a course, andto move with such speed, between thèse points,
as would enable her to make the landing at Clifton in safety. But
in view of the situation of the canal-boat, she owed a duty to the libel-
ant to pass the canal-boat at as low a rate of speed as was consistent
with her saf e navigation to the Clifton landing. This obligation is
acknowledged in thë ànswer, when it is a,Vérred that, the ferry-boat
passed without causîng or creating any unnecessary or unusual dis-
turbance in, or suction of, the water about the said bulk-head, and
THE 80UTHFIELD. 843
employing only snch speed as was actually necessary to enable her to
make her said docks in safety. The answer also indicates, with stif-
ficient accuraey, what speed was actually necessary to the safe navi-
gation of the ferry-boat at this time and placé, for it avers that the
engine of the ferry-boat was slowed ahreast of the Stapleton pier, and
with the aid of wind and tido the ferry-boat floated past under mod-
erato steerage way and careful handling.
The décision of the case turns, then, upon a question of fact, namely,
whether the ferry-boat passed the libelant's boat as described in the
answer, or at unnecessary speed, as charged in the iibel. Upon this
question the weight of the évidence is with the libelant. The libelant,
who was on the deck of his boat, and watching the ferry-boat, testifies
that the ferry-boat did not check her speed until after she passed the
Wrecker's pier. He also testifies that his attention was called to the
ferry-boat by his deck-hand. That he said to the deck-hand, "Is she
going to check down?" and the deck-hand replied, "I guess not, by>
the looks." This conversation had at the time, with the ferry-boat'
in view and uuder attention, strongly confirms the master's statement
that the ferry-boat did not check her speed until after she had passed
his boat.
In opposition to this statement of the libelant, the claimants pro-
duce the testimony of the pilot and wheelsman of the ferry-boat. The
testimony of the pilot, which, it will be observed, is not strictly in ac-
cordance with the statement of the answer, is this: "When we left
Quarantine dock we hooked the boat up, and wheri I got within 200
feet of the Club House dock, I shut her off with one bell, and from
there to Clifton I ran shut off." Elsewhere he says that he rang the
one bell becauso he could not manage the boat at full speed. But
he makes no claim to hâve navigated the ferry-boat with any référ-
ence to the effeot of her navigation upon the boats lying at the bulk-
head, nor did he know of the damage done until his return from New
York on the next trip, and his testirnony, taken together, is calculated
to raise a doubt as to his having any distinct recollection of the place
whére he slowed his boat ou this particular trip. Certainly, it is not
sufficient to outweigh the testimony of the libelant^ whose attention
was called to the speed of the ferry-boot by the danger of his boat,
and whose statement is çonfirmed by the conversation had at the
time. No support to the pilot's testimony is derived from the tes-
timony of the wheelsman, Who manifestly bas little, if any, recol-
lection respecting this particular trip. Moreover, the libelant's testi-
mony in regard to the speed of the f erry-boa,t is in harmony with the
resuit, while that of the ferry-boat pilot is not. That the passing of
the ferry-boat was foUowed by an nnusual suction is proved, and not
denied. It is also shown by the movements of the canalrboat. > This
unusual suction is acoounted for by unnecessary speed on the part of the
ferry-boat, and the évidence discloses nothing else to which it can be
^ttributed. Frobability seems; also, on the side of the libelant's state-
844 FEDEBAL BEPOSTSK
ment tbat tlie ferry-boat passed him wîthout checking. The ferry-boat
omitted the Stapleton landing, and this indicates that the boat was
short of time, as, according to the superintendent, she some times was
on the morning trip from New York. Being short of time, it is by no
means improbable that she ran longer than usual before cheeking her
speed. My conclugion, therefore, is that the damage sued for was
caused by a neglect of duty on the part of the ferry-boat in this, that
she passed the libelant's boat at an unnecessary rate of speed.
A decree must be entered in favor of the libelant, with an order of
référence to ascertain the amount.
The Chas. E. Sopee.*
The Osseo.*
{District Court, F. D. Nm Tork. November 16, 1883.)
, CoLiiieiON — Bteam-Boat and Tug — Crossing Couuses — Fault in not Hold-
ing Course— Faulty Lookout.
A collision occurred between the tug S. and the steam-boat O., in the East
river, in the day-time, in clear weatber, under the following circumstances :
The tide was flood. The O. had left Fulton market pier, where she had lain
head down the river, and rounded eut, bound up the river. The 8. was com-
ing down near midstream. Abreast, or nearly so, and between the S. and the
New York shoi:e, was a tug towing a schooner on a hawser down stream.
Ahead of the 8., comlng up, was a tug with two barges along-aide, and be-
tween this tow and the New York shore was another tug and schooner. The
S. could not pass to port of the barges, owing to the closing up of the other
vessels, and starboarded, and had just cleared the barges when she struck the
O. on the port side. Hdd, that the 8. was not in fault for sheering across the
bows of the barges, nor for not stopping and backing when she f ound she could
not pass the barges to port ; nor was the collision caused by the 8. being withln
20 yards of the vessels going down, in violation of a state statute; that the
omission of the 8. to answer the O. 's whistle caused no change in the move-
ments of either, and in no way conduced to the collision ; that after the S.
starboarded to pass the barges, the 8. and the O. were on courses crossing, and
the O. was in fault for straightening up the river and not holding her course,
and for not seeing the 8. as soon as she mlght hâve done ; that the 8. was also
in fault for not keeping a good lookout, and seeing the O. before the S. sheered,
it being highly probable that if the O. had been then seen the 8. would hâve
sheered more sharply, and removed from the O. the temptation to cross the S. 's
bows. fiôth vessels being responsible for the collision, the damages must be
apportioned.
Bamb — Claih for Salvaob by Vbssbl rs Fault.
A claim for salvage, made by the 8, for towing the O. to a place of safety,
after she was disabled by the collision, was rejected because the collision that
made the service uecessary was in part caused by the fault of the S. herself.
In Admiralty.
Scudder é Carter, for the Osseo.
Edwin O.Davis, for the Soper.
iReported by R. D. & Wyllys Benedict, of the New York bar.
THE OHi.S. E. 80FBB. 846
Benedict, J. Thèse are cross actions arising eut of a collision be-
tween the tug Charles B. Soper and the steam-boat Osseo, that oc-
curred nearly under the Brooklyn bridge, in the East river, on the
twenty-ninth day of May, 1882. The tide was flood. The Osseo
had lef t her berth at the Fulton market pier, where she had lain head
down the river, and was bound on her regular trip up the river. It
was day-time, and the weather was clear. As the Osseo rounded out
from her berth, the tug Soper was coming down the river, near the
middle of thestream. Abreast, or nearly abreast, of the Soper, and
between her and the New York shore, was a tug towing a three-
masted schooner on a hawser, and also bound down the river. Ahead
of the Soper, and coming up the river, was a tug with two lumber-
barges along-side, and between this tug and the New York shore was
another tug with a schooner in tow. As the Soper approached the
lumber-barges, her intention was to pass tô port of that tow, but this
was rendered impossible by the closing up of the other vessels, where-
upon she hove her wheel a-starboard and passed outside of the lum-
ber-barges. When she had just cleared them she came in collision
with the Osseo, striking her heavily in the port paddle-box. At the
time of the blow the Soper was backing her engine and the Osseo
was moving rapidly ahead. The libel of the Osseo charges that the
collision was occasioned by the fault of the Soper, in that she did
not keep out of the way of the Osseo, and in that she had no look-
out, and did not see the Osseo in time to avoid her, and did not an-
swer her whistle. The theory of the Osseo, put forth in her libel, is
that she was about abreast of the lumber-barges and going in the
same direction as they were, but faster, when the Soper changed her
course to cross the bows of thé lumber-barges, and, although the
Osseo blew one whistle and ported, the Soper, without answering the
whistle, kept on and ran into the Osseo. The answer of the Soper
states that, as the Soper crossed the bows of the lumber-boats, the
Osseo swung round the stem of the schooner that was towing up the
river, and, when pointed to the starboard quarter of the starboard
lumber-boat, attempted to cross the bows of the Soper on that course
by putting on fuU speed, although she had half the river clear upon
the Brooklyn side, and there was nothing to prevent her avoiding the
Soper by stopping, or by going further towards the Brooklyn shore,
instead of attempting to pass close to the lumber-boats, as she did.
Upon the argument it was earnestly contended in behalf of the Os-
seo that the Soper was in fault for sheering across the bows of the
lumber-boats when she did. No such fault is charged in her libel,
nor was the sheer a fault. That course was forced upon the Soper
by the other vessels close to her, and was a proper course to pur«ue
under the circnmstances. It was also contended that the Soper was
in fault for not stopping and backing when she found' that sh* could
not pass the lumber-boats to port. This fault is not charged in the
libel, nor proved by the évidence. It was also contended that the
846 rBDUBAIi BBPOBTEa
Soper was runnîng in riolation of the state law, because she was les»
than 20 yards from the tug and three-masted sohooner towing down.
The libel charges no Buch fault; nor was the collision caused by the
Soper being within 20 yards of the vessels going in the same direc-
tion.
In regard to the faults that are charged in the libel it is my opin-
ion that the omisBion of the Soper to answer the whistle of the Osseo
caused no change in the movements of either boat, and in no way
conduced to the collision. It is also my opinion that the Soper can-
not be held in fault for not avoiding the Osseo. There was no dan-
ger of collision between the Soper and Osseo before the Soper sheered
to cross the bows of the lumber-boats. The clear weight of évidence
contradicts the statement of the Osseo's libel, that, when the Soper
shèered, the Osseo was heading up the river abreast of the lumber
barges, and shows that at that time the Osseo was astern of the lum-
ber boats, heading towards Brooklyn. After the Soper altered her
course, the Osseo straigbtencd up' in the river, and attempted to cross
ahead of the Soper. If it be true that when the Soper altered her
course she assumed the obligation to avoid the Osseo, because the
vessels were then on courses crossing, and she had the Osseo on her
starboard hand, by the same rule the Osseo became charged with the
obligation to hold her course. This she did not do. On the contrary,
she straightened up the river, and, as the libel admits, came parallel
with the lumber barges. This fault of the Osseo plainly conduced to
the collision, and is sufficient to render her responsible for the acci-
dent that ensued.
But the Soper is also in fault for not keeping a good lookout, as
charged in the libel. The testimoïiy shows that the Osseo was not
seen by the Soper Until after the Soper sheered and her bows had
crossed the bows of the lumber-boats. There was nothing to prevent
the Soper from seeing the Osseo; and before making the change of
course that she did, it was her duty to observe the position of ail ves-
sels near her. And it is highly probable that if the Osseo had been
seen by the Soper when the necessity for the sheer arose, the Soper
would bave been sheered more sharply than she was, and thereby ail
temptatiou to attempt to cross her bows removed from the Osseo.
For this fault the Soper must be held to be also responsible for the
accident that ensued. À similar fault is proved against the Osseo,
for she did not see the Soper as soon as she might bave done. Haï
the position of the Soper, when she altered her course, been observed
by the Osseo, it is probable that the navigation of the Osseo would
hâve been différent from what it was. My conclusion, therefore, is
that both vessels are responsible for the collision in question, and
that the damages resulting must be apportioned between them.
In addition to the claim of damages made by the Soper, her cross-
libel contains a claim for salvâge services in towing the the Osseo to
a place of safety after she was disabled by the collision in question^
and also a claim for compensation for towing the Osseo for several
days after the collision, under a contraot made in r&speot thereto.
No objection is made to thé joinder of theae demanda in an action
like this, and they will therefore be disposed of on their merits. ïhe
claim for salvage must be rejected because the collision that made
the service necessary was in part caused by the fault of the Soper
herself. '
As to the demand for towage services subsequently performed un-
der a contract there is reaily no dispute betv^een the parties. This
demand is therefore allowed. If there be any controversy as to its
amount, a reierence may be had.
Thb E. Luckenbaok.*
District Oouri, El. D. Nm York. Jaauary 19, 1884:)
BiaaiooRAPHBB's Fbe8 ON Truit-Whbn Taxed.
A direction made in open court that tlxe testimony given in court bé talcen
down by a stenograplier issufiBcitent to entitle tlie stenographér's fées to be
tazed by the successful party. .J
Appeal from Taxation of Costs.
(îoodricA, Dead^ tÊ Pia«, for the motion*
BwtZer, iSfiZZmaw ce JfMfafcari, opposed. ;
Benediot, J. The judge's notes of the trial of this cause contain the
mémorandum, "stenographer takes notes." This memoirandum in-
dicates a direction given at the time that the testimony given in court
be taken dov^n by a stenographer. A direction to that effect made
in open court is sufficient. It was unnecessary to enter a: formai
order. The sum paid stenographer was therefore for services ren-
dered in pursuance of a direction of the court, and, like the.expenses
of printing, (^Dennis v. Eddy, 12 Blatchf. 195,) is taxable by the suc-
cessful party.
iReported by R. D. & Wyllys Benediot, of thç New Yorfe bar.
848 PBDBBAL BSFOBTEB.
WhITB V. TWO HUNDBBD AND NiNBTT-TwO ThOUSAND ThBBB HoNDEBD
DoLLAES, Proceeds of the Steam-Boats Americus, etc.'
[District Court, B. D. Nm York. December 28, 1883.)
1. Ship'b Hdbband— LiiBsr — Pkoceeds of Salk of Vessel.
There is no lien on moneys, the proceeds of the sale of steam-boats, in favor
of one wlio acted in the capacity of ship's husband, for sums paid by bim in
satisfaction of demands claimed to be at the (ime aubsisting maritime liens on
the vessels, such proceeds not being in his hands.
2. Samk — Exception to Libbl.
Exception to a libel claiming such a lien on proceeds of certain vessels was
sustained and the libel dismissed.
In Admiralty.
D. <é T. McMahon, for libelant.
Blair, Snow é Rudd, (R. D. Benedîct, of counsel,) for respondent.
Benbdiot, J. This case cornes before the court upon exception to
the libel, upon the ground, among others, that the libel fails to state
facts, showing the libelant, E. Comell White, to hâve a lien upon the
moneys proceeded against. Thèse moneys, as the libel shows, are
the proceeds of certain steam-boats, of which vessels the libelant was
ship's husband. The claim sought to be enforced against thèse mon-
eys consists of varions sums paid from time to time by the libelant,
while aeting in the capacity of ship's husband, in satisfaction of cer-
tain demands, which were at the time, as the libelant claims, sub-
sisting maritime liens upon the respective vessels. Upon this state-
ment the libelant had no lien upon the vessels, and bas none upon
the proceeds, not being in his hands. The authorities are clear to
the effect that a ship's husband has no lien upon the ship for sums
paid by him in satisfaction of the ship's bills. The Larch, 2 Curt. C.
C. 427; The Sarah J. Weed, 2 Low. 556; The J. C. WiUiams, 15
Fed. Eep. 558. Thèse cases are décisive of the présent oase. If au-
thority were wanting, my opinion would still be adverse to the libel-
ant. The libelant cannot maintain this action if he could not main-
tain an action against the vessels themselves, and there are, in my
opinion, strong considérations which should forbid a ship's husband
to acquire, as against his principals, a lien upon their vessel for pay-
ments which he is employed to make for them, and which he makes
for a compensation paid him.
This exception to the libel is therefore well taken, and the libel
must be dismissed, with costs.
» Keported by R. D. & Wyllys Benedict, of the New York bar.
ALBBIGHT V. 0TST2B. 84^
MosHBB ». St. Louis, I. M. & S. Rt. Co.*
{Oirmit Court, S. D. Mmouri. March 24, 1884.)
Rbkotai. gb Cabbb from Statk Courts to thb Oibouit Ooubt op thb TJnited
8TATE8.
Either partj may remove into a circuit court of the Dnited Btates any cage
where the controversy is between citizena of diâerent atates.
Motion to remand a oase removed to this court from the circuit
court of Jefferson oounty, Missouri, at the instance of the défendant
who is a résident of Missouri.
William M. Eccles and E. P. Johnson, for plaintiff.
Bennett Pike, for défendant.
Tbeat, J. The court is referred to sections of the Bevised Statutea
which embraced ail statutes prior to December 1, 1873. Since then
the act of March 3, 1875, bas enlaiged the jurisdiction of the fédéral
oourts, wbereby either party may remove into a circuit court of the
Qnited States any oase where the controversy is between oitizens of
différent states.
The motion to remand is overroled.
ÂLBBioHT and others v. Otsteb and others.*
{UireuU Oovrt, B. D. lliuouri. January 21, 1884.)
K^inTT— REBtJi/rma Trusts— Parties.
A... B., C, and D. had an interest in certain lands. D. died, and E. quallfled
as his executriz, and in that capacity agreed with A., B., and C. that ttie land
sliould be divided, and O.'s share conveyed to X. în trust for O.'s cliildren.
Tlie division was made, and 0.'s sliare was conreyed to X. under an oral agree-
ment that he would hold it in trust for said chlfdren ; but the deed was abso-
lute on its face, and recited a considération, though none was paid by X. X.
afterwards, without considération, made an absolute conveyance of said prop-
erty to A. "A. then brought suit in ejectment against C, who held possession
of said property for his children, and recovered judgment. In a suit brought
by 0. and several of his children, in equity, to hare said judgment at law re-
Btrained, and for other relief, hdd :
(1) That said conveyance to X., under said oral agreement, had oaused a
resulting trust to arise in favor of O.'s children, and that X. held subject
thereto.
(2) That A. received the légal title to said property from X., subjeot to said
trust.
(3) That B., u executrix of D., and B. were both proper parties.
In Equity. Demurrers and plea to the bill, and «xoeptioni to an*
•wer.
> Beported by Ben}. F. Rex, Esq., of the St. Louis bar.
Y.19,no.l2 -54
850 711DEBAL BEFOBTEB.
The faets stated in thé bill are, in substance, as follows :
Abraham Oyster died in 1882, testate and seized of certain lands situated in
Missouri. He left four children. Margaret, George, David K., and Simon
Oyster. Simon, died, however, before Ms father's property was distributed.
He left a wiU, of which he appointed his wife, Margaretta, executrix. After
his death his wife, as hia exeeutrix, agi'eed with the tliree surviving children
of Abraliam Oyster to make a différent division of Abraham Oyster's lands
from the one provlded for in his will. It was agreed between them that said
lands should be sold by Di'K. Oyster, who waa his father's administrator, at
publie sale, and that certain speeifled tracts, and such other tracts as it seemed
advisable to keep, should be bid in by the parties to the agreement, and that
the lands so bid in should be appraised and divided between them without any
payment of the amounts bid. ïhe plan was carried out, and the lands in con-
troversy fell to D. K. Oyster, but, pursuant to said agreement, were conveyed
by him, as his father's administrator, to Simon K. Oyster, by a deed, absolute
on its face, and which recited a considération. Ko considération was paid by
said Simon K., however, and the oonveyance was made under an oral agree-
ment on his part to hold tlie property in trust for D. K. Oyster's children.
Simon K. subsequently became very sick, and, while he was expeciing to die,
George Oyster persuaded him that it might create trouble if hé died with said
trust estate in his possession, and that he had better deed the land to him.
And Simon K. accordingly executed a deed, reciting a considération, and ab-
solute on its face, eonveying said lands to George Oyster. No considération
waa in fact paid. Ever since the property in question waa bought in and
conveyed to Simon K. Oyster in the manner described, David K. has held
possession of it for his children, who are minors. After getting the légal title
into his hands, George Oyster brought suit in ejectment against David K. to
get possession of said property, with intent to defraud said children out of it,
and asked, also, for rents and. profits. David K., having no légal défense, en-
tered into a stipulation with George to let judgment go in considération of an
agreement on George's part that no exécution should issue until May, 1884,
in order that complàinants might hâve time to flle their bill hère, and judg-
ment went accordingly.
The prayer is that George Oyster be restrained from isauing açi
exécution on the judgment in the pjectment suit, and from comméûc-
ing or prosecuting any qther proceeding at law against the compiain-
ants for recovering poiss'èssion of said lands ; for a decree to convey to
MoUie N. Albright, William E. Oyster, and lola E. Oyster, (children
of David K. Oyster,) ail the right, title, and interest in said lands
which said G-eorge Oyster acçiuired from Simon K. Oystet, and for a
discovery.
■Margaretta Oyster, executrix of Simon, and Margaret Oyster, who
are joined as parties défendant, demurred to the biil on the ground
that it does not show that they hâve any interest, or claim any inter-
est, in the lands mentioned in the bill, or hâve ever denied complàin-
ants' right to the relief deinanded, and also because the bill does not
state any case entitling complàinants' to any discovery or relief against
her.
Simon K. Oyster filed à ptea ïàising the question of whether or iiot
the Missouri statute of frauds should be held to operate to prevôM
the granting of the relief asked in the bill. The section relied on. is
that "ail déclarations or créations of trust or confidence, of any lands.
lIiBAIGHT V. OYBTBB. S51
tenements, or hereditaments, shall be manifested and proved by some
■writing signed by the party who is or shall be by law enabled to dé-
clare such trusts, or by his last will in writing, or else they shall be
void." That section is foUowed by another, however, (section 2512,
Eev. St.,) providing that "resulting trusts shall be of like force as the
same would hâve been if the act had not been made."
George Oyster filed an answer in which he set up the statute of
frauds, and alleged, among other things, that David K. Oyster, as ad-
ministrator of his father, was indebted, upon the basis of the contract
upon which the division of Abraham's real estate was made, in the
sum of $4,975 to him, and in the sum of $5,230 to Margaretta Oys-
ster, at the time he made the deed to Simon K. Oyster, and still re-
mains indebted to them for said sums, with interest, although pay-
mént had been frequently requested; and that the sureties on the
bond given by David K., as administrator, as wéll as David K. him-
self, are insolvent, so that the only resource left his said creditors to
get payment of what remains unpaid of the legacies is the landa in
dispute, or the lien thereon for the unpaid purchase money.
The complainants excepted both to that part of the answer setting
up the statute of frauds and the parts setting up the indebtedness of
David K., as administrator, and his insolvency and the insolveney of
his sureties.
George H. Shields and James Carr, for complainants.
Dryden dt Drydèn, for défendants.
Tbeat, J. The demurrers to thé bill are overruled. The demur-
rants are proper, and in certain aspects of the case may be necessary
parties. Under the theory of the bill there was ample considération
for the conveyance to Simon K. Oyster, in trust, moving from David
for his ehildren. The averments are to the effect that the considéra-
tion named in the deed to Simon K. was lùerely for the purpose of
equalizing the distribution of the estate, as had been agreed upon.
If those averments are true, then Simon K. took the title clothed with
the trust for David's ehildren. It is admitted that George ocoupies
no better position than Simon K., his grantor. Therefore the excep-
tions to the plea are sustained ; also, for the same reasons, the first
exception to the answer, to-wit, so much as sets up the statute of
frauds. The other exception to the answer is overruled, for, if de-
fendant's theory be correct, the matters involved in the second excep-
tion may become material.
CoNTROL OF Courts of Equitt ovbr Jtjdgmbmts at Law— Gebtfoial
Principlbs. The leading American case on this subject is Marine Ins. Co.
ofAlexandria v. Bodgson,^ in which the opinion of the court waa delivered
by Chief Justice Marshall. The statement made by him in that case, of the
niles governing the action of courts of equity where relief is asked agàinst
judgments at hiw, is as followa: "Without attempting to draw any précise
TCranch, 332.
FEDEBA:Ii BEFOBTEB.
line ta whîch courts of equity will advance, and which they cannot pass, in re-
straining parties from availing themselves of judgments obtained at law, it
may saf ely be said that any f act which clearly proves it to be against conscience
to exécute a judgmejit, and of which the injured partycould not haveavailed
himself in a court of law, or of which he niight hâve availed liimself at law
but wasprevented byfraud or accident, unmixed withany fault or négligence
in himself or his agents, will j'ustify an application to a court of chancery.
On the other hand, it may, with equal safety, be laid down as a gênerai rule
that a défense cannot be set up in equity which has been f ully and f airly tried
at law, aJthough it may be the opinion of that court that the défense ought to
hâve been sustained at law. "
In addition to the grounds for relief ref erred to by Chief Justice Makshall
mistalce and surprise may be mentioned.
Défenses Availablb at Law, " Where," as Ohancellor Kent said in de-
ciding the case of Simpson v. Hart,^ "courts of law and equity hâve concurrent
jurisdiction over a question, and it receives a décision at law, equity can no
more re-examine it than the court of law in a similar case could re-examine a
decree of a court of equity." When a défense is once f airly passed upon, the
décision is final, no matter how inéquitable it may appear.^ And where a dé-
fense sought to be set up in equity, as a ground for relief against a judgment
at law, might hâve been set up at law, but was not because of a laclc of diligence
on the complainant's part, equity will not interfère. The rule is inflexible.*
So, even where a judgment has been obtained by fraud, accident, or mistalie,
if there is any adéquate remedy at law, as by motion for a new trial, or ap-
peal, equity requires the injured party to avail himself of that remedy, and
if he fails to do so without good excuse, will grant no relief.* The tact that
a défense is équitable is no excuse for not setting it up at law, if available at
law under the Code practice.^ Ignorance of a défense oonstitutes no ground
for the interférence of equity if there was négligence in remaining ignorant.
Défendants are bound to use diligence in preparing themselves for trial. If
they do not, they are left to bear the conséquences.' Thus, if a défendant
cannot appear and make his défense in person, it is his duty to employ an
' 1 Johns. Ch, 97. 431 , Mills v. Van Voorhis, 10 Abb. Pr. 10 ;
«Bateman v. Willoe, 1 Soh. & Lef. Coffee v. Bail, 49 Tex. 16; Andrews v.
(Eng.) 204; Emerson v. tJdalI, 13 Vt. 477; Penter, 1 Ark. 188; Cummins v. Bentley,
Agard v. Valenoia, 89 Cal. 292; Duncanv. 5 Ark. 9; Bellany v. Woodaon, 4 Ga. 175 ;
Lyons, 3 Joiins. Ch. 356; By. Co. v. Neal, Eobuok v. Harkins, 38 Ga. 174; Norris v.
1 Wood, 353 ; Hendriokson v. Hinckly, 58 Hume, 2 Leigh, (Va.) 834 ; Green v.
U. S. 443; Truly v. Wanzer, 46 U. S. 141; Thomas, 17 Cal. 86; Marsh v. Edgerton, 1
Poster V. State Bank, 17 Ala. 672 ; Brush Chaud. (Wis.) 198 ; Tyler v. Hameraley,
v.McCanby, 76111, 189; Snyderv.Vannoy, 44 Conn. 419; Phelps v. Peabody, 7 Cal.
1 Or. 344; Yancey v. Downer, 5 Litt. 8; 50k
Sumner v. Whitley, 1 Mo. 708; Maison v. «Huston v. Ditto, 20 Md. 305; Bellows
Pield, 10 Mo. 100; Eitter v. Démocratie v. Stone, 14 N. H. 203; Reed's Adm'r v.
Press Co. 68Mo. 458. Hansard, 37 Mo. 199; Nat. Bank v. Bur-
> Poster V. Wood, 6 Johns. Ch. 86 ; Em- net Manuf g Co. 33 N. J. 486 ; aty of Mus-
erson v. TTdall, 13 Vt. 477 ; Smith v. Mo- catine v. M. & M. Ey. Co. 1 Dill. 536 ; Hud-
Iver, 22 U. S. 532; Lester v. Hoakins, 26 son v. Kline, 9 Grat. 379; Walker v. Eob-
Ark. 63; Higgins v. Bullock, 73 111. 205: bins, 55 U. 8. 584.
Smith V. Powell, 50 111. 21; Eichmond «Kelly v. Hurt, 74 Mo. 561; Winfleld
Enquirer Co. v. Eobinson, 24 Grat. 648 ; v. Bacon, 24 Barb. 154 ; Savage v. Allen,
Kelly V. Huit, 74 Mo. 561 ; Katz v. Moore, 64 N. Y. 458.
13 Md. 688; Collier v. Easton, 2 Mo. 146; «Skihner v. Deming, 2 Ind. 558; Mo-
Jackson V. Patrick, 10 S. C. 207 ; Slaok v. Cown v. Maoklin's Ex'r, 7 Bush, 308;
Wood, 9 Grat. 40 ; Marsh 's Adm 'r v. Bast, Brown v. Swann, 35 U. S. 497 ; Thompson
41 Mo. 493 ; Prewitt v. Perry, 6 Tex. 260 ; v. Berry, 3 Johns. Ch. 396 ; Tutt v. Pergu-
livday V. Douple, 13 Md. 566 ; Selbina Ho- son, 13 Kan. 46 ; McCollum v. Prewitt, 37
tel Ass'n V. Parker, 58 Mo. 827; Èwing v. Ala. 573; Garrett v. Lynch'g Adm'r, 45
Nickle, 45 Md. 413; Gaines v. Kennedy, Ala. 204; Marine Ins. Co. v. Hodgson, 11
53 Misa. 103; Johnson v. Lyon, 14 lowa, U. S. 333.
LLBSiaHT V. OYSTBB. 8Ô3
agent or attorney to act for Mm if the défense is of such a nature that it can
be made in Ms absence. If it cannot, he should apply for a continuance.
Where he fails to do either, and judgment goes against him by default, equity
will not enjoin its exécution.^ The négligence of attorneys is considered the
négligence of their clients, and equity will not interefere on behalf of a com-
plainant whose attorney has negligently f ailed to make a défense to a suit at
law and permitted judgment to go by default,^ or has neglected to assign er-
rer on appeal,' or fraudulently caused his client to lose the beneflt of an ap-
peal,* even where the attorney is insolvent. But where the défendant has
both a légal défense and an équitable défense, not available at law, a failure
to use diligence in making his légal défense will not, it seems, prevent a court
of equity fromgranting an injunotion upon proof of the équitable défense, in
case a judgment is rendered against him.^
Défenses not Available at Law — Newly-Discoverbd Evidence.
Equity will aiways restrain the exécution of a judgment where it would
be centrai^ to equity and good conscience to allow it to be executed, and
where the facts which render it thus inéquitable were either not available at
law.'or were not discovered bythe complainant, notwithstanding due dili-
gence, until it was too late to set them up there.' In Wynne v. Newman's
AdmW, 75 Va. 816, Burkb, J., says that the circumstances under which
equity will grant a new trial because of newly-discovered évidence " may be
summed up thus: (1) The évidence must hâve been discovered since the
trial. (2) It must be évidence that could not hâve been discovered before
the trial by the plaintiff or défendant, as the case may be, by the exercise of
reasonable diligence. (3) It must be material in its object, and such as ought,
on another trial, to produce an opposite resuit on the merits. (4) It must
not be merely cumulative, corroborative, or collatéral." The gênerai rule
governing this whole subject is that whenever a complainant can show a
good défense which he has failed, without fault or négligence, to avail him-
self of at law, he may be relieved in chancery.»
"Wheee thekè has been no Service of Peooess, ob a Defeotive
Seeviob. "Where an unjust judgment is obtained against a défendant over
whom the court rendering the judgment has no jurisdiction,» or who has
never been served with process, or recelved notice of the institution or pend-
ency of the suit against him," the exécution will be enjoined, unless relief
»Duncanv. Qibson, 45 Mo. 352 ; George 111. 417; Bank v. Ruse, 27 Ga. 391: Odell
V. Tutt, 36 Mo, 141; Powell V. Cyfers, 1 v. Eeed, 54 Qa. 142.
Heisk. 526 ; McCoUum v. Prewett, 37 Ala. ' Iglehart v. Lee, 4 Md. Ch. 514 ; Foote
573; Crlni v. Handley, 94 U. S. 652. v. Silsby, 1 Blatchf. 545; Taylor v. Sut-
» Kogers v. Parker, 1 Hughes, 148 ; Kern ton, 15 Ga. 103 ; Pearce v. Chastaln, 3 Ga.
y. Strausberger, 7 111. 413 ; Bowman v. 226 ; Mills v. Van Voorhis, 10 Abb. Pr.
Pield, 9 Mo. App. 576; Winn v. Wilson, 10; Millickv.KrstNat.Bank, 52Iowa,94.
1 Hemp. 698; Crim y. Handley, 94 U. 8. 'Sanders v. Jennings, 2 J. J. Marsh.
652. 513 ; Barr v. Deniaton, 19 N.H. 170 ; Wat-
» Miller v. Bemecker, 46 Mo. 194 ; Di- son v. Pcdmer, 5 Ark. 601 ; Bank v. Repse,
net V. Bigenmann, 96 111. 39. 27 Ga. 391 ; Humphreys v. Legett, 60 U. S.
«Dobbs Y. St. Jo. P. & M. Ins. Co. 72 297; Legett v. Humphreys, 62 U. S. 66;
Mo. 189. Biirem v. Poster, 6 Heisk. 833; Rloe v.
«Ctomeliusv. Thomas, 1 Tenu. Ch. 283; Banfc, 7 Hum. 39; Clifton v. Livor, 24
Winchester v. Gleaves, 3 Hay. 213. Ga. 91.
« Clute V. Potter, 37 Barb. 199 ; Marine ' Grass v. Hess, 87 Ind. 193.
Ins. Co. V. Hodgaon, 7 Cranoh, 333; Fos- "Martin v. Parsons, 49 Cal. 94; Weaver
terv. "Wood, 6 Johns. Ch. 86; Gaines v. v. Poyer, 79 111. 417 ; Wllday v. MoConnel,
Haie, 28 Ark. 168; Key v. Knott, 9 Gill & 63 lU. 279 ; Southern Exp. Co. v. Craft, 43
J. 342; PoUook v. Gilbert, 16 Ga. 398; Miss. 508; Brooks y. Harrison, 2 Ala. 209 ;
Vather v. Zane,' 8 Orat. 2^ ; Rogers y. Dunklln v. Wilson, 64 Ala. 162 ; Crafta v.
Cress, 3 Pin. (Wis.) 36 ; Dnnham y. Dexter, 8 Ala. 767
Cowner, 31 Vt. 249; Weaver v. Poyer, 79
S6i mOBBAIi BEPOBTES
can be obtained at law.* But no relief will be granted wliere the complaln-
ant has been properly served with process, and bas failed to ïnake a défense
beeause he thought the suit was against another person.^
■Wherb an Attesipt is Made to Levy on Pboperty not Belonging
TO THE Défendant. Equity will not permit a judgment to be exeeuted by
levying on property not belpnging to the party against whom it was ren-
dered;* and where a person is in quiet possession of real estate as owner, it
will restrain others by injunction from dispossessing him by proeess growing
out of litigation to which he was not a party.''
Tbaud, Accident, Surprise, and Mistake. Equity will never permit
an unjust judgment, obtained, without négligence on the defendant's part, by
surprise, fraud, accident, or mistake, to be exeeuted where there is no légal
remedy.' ïhus, where the plaintitî caused a false return to be made by tho
person deputed to serve the summons on the défendant, when he knew
there had been no service, and recovered judgment by default, the judgment
wasannulled. So, relief was granted where the plaintilï had induced the
défendants to withdraw an équitable plea they had filed in tlie case, by a
promise that if such plea were withdrawn he would do the equity set up in
the plea, and would enter into writing to that effect, but had failed to comply
with his promise and taken judgment.* So, where a judgment is taken by
default in violation of an agreement of compromise by which a défense is pre-
vented, its exécution will be restrained.' So, where the défendant is induced
by false représentations of the plaiiitifiE* or his attorney' to believe that no
further proceedings will be taken, and makes no défense, a judgment by de-
fault wlU not be permitted to be exeeuted. So, where the défendant allows
judgment to go against him in considération of an agreement on the plain-
tiff's part that no money need be paid on it except upon the happening of a
certain event, the plaintifE will not be permitted to exact payment in viola-
tion of the agreement. ^" So, where defendant's counsel is shovvn to hâve
acted for both parties, and advised the défendant to confess judgment." So,
where a sheriff, whom the complainant had agreed to save harmiess, fraud u-
lently, in collusion with the plaintifl, allowed judgment to go against him
when he had a good défense. ^^ But he who comes into equity must do
equity. If a party asks for relief against a judgment for more than is due,
he must offer to pay what he admits is due.''
In Cannon v. Reynolds,^* where a mistake was made in the defendant's
favor in the statement of the account sued on, and the défendant, knowing of
the mistake, allowed judgment to go by default, the judgment was set aside.
In another case, in which an appeal had been dismissed, beeause of a clér-
ical mistake in making out the appeal bond, the judgment was enjoined.
In the case of Bell v . Cunningham^^ the défendants were nôn-resident
foreigners. Their counsel went to trial upon the déclaration as it stood, which
was not supportable. New counts were flled by leave of court, which cov-
>Nat. Bankv. BumetManufgOo. 3N. Bridgeport Sav. Bank v. Eldredge, 28
J. 486. Conn. 556 ; Eogers v. Qwinn, 21 lowa, 58 ;
« Higgins V. BuUook, 73 III. 205. Hibbard v. Eaatruan, 47 N. H. 607 ; Kent
•Glvens v. Tidmore, 8 Ala. 745. v. Rioards, 3 Hd. Ch. 392.
♦Goodnough v. Sheppard, 28 111. 81 î *Dobson v. Pearee, 12 N. Y, 156; Will-
Stewart v. Pace, 30 Ark. 594. lams v. Powler. 2 J. J. Mareh. 405.
^Carrington v. Holabird, 17 Conn. 530; "Pearcé v. Olney, 20 <3onn. 644; Hol-
Wingate v. Haywood, 40 N. H. 437 ; Cur- land v. Trotter, 22 Qrat. 136.
rier v.Esty, 110 Mass. 636; Norris v. ">MooreV. Barclay, 16 Ala. 158.
Hume, 2 Leigh, ( Va.) 334 ; Brooks v. Har- " Molyneux v. Huey, 81 N. C. 107.
rison, 2 Ala. 209; Bqgers v. Cross, 8 Pin, " Iglehart v. Lee, 4Md. Ch. 614.
fWis.) 36 ; Burem ▼. Foster, 6 Heisk. 333. "Campbell v. Morriaon, 7 Paige, 167.
« Markham v. Angier, 67 Ga. 42. "6 El. & BI. 300.
'Nealis' Adm'r v. Dicks. 72 Ind. 374; "ISumn. 89.
NIOHOLB T. JOMSS. 85&-
ered a claîm not bef ore embraced in the deelaratioiL The défendants had no
notice of the change and no means of Instructing thei^ counsel on any point
of défense. The trial immediately prqceeded, and a verdict obtained whieh
would not hâve been recovéred if the défendants had had notice of the claim.
Judge Stoby delivered the opinion Of the court, and held that an injunction
should be granted pro tanto to the judgment, on the ground of surprise.
Equitable Remédies — New Tbials. In relioving against an unjuet
judgment recovéred in a court of law, equity does not act upon the court of
law, but upon the party who bas recovéred the judgment, — sometinies by siin-
ply enjoining him from attempting to collectit; sometimes by forcing him to
agrée to a new trial. The new trial should neVer be granted in terms.' In
deciding the case of C. <6 F. Ry. Oo. y. Titris, Chancellor Runyon laid down
the law as follows: "Originally chancery compelled new trials at law by per-
petually enjoining the plaintifl in the judgment from enfordng it, unless he
■would consent to a new trial; the injunction being the means by which the
plaintiff was constrained to do justice, and the practicé of thus compelling
new trials at law still exists. This court can. In any given case, itself give
effect to the testimony, with respect'to which a new trial may be oi-dered, and
détermine what différence it ought to hâve made in the resuit of the tjrial at
law, if it had been introduced there. In such cases there will, in effect, be a
new trial in this court, instead of at law. It is quite within the power of
this court to order an issue at law where thé facts are contradictory."^
&t. Louis. B. E.Rex,
>8fcory, Eq. Jur. ? 1571 etseq.; Yancoy V. lier y. Easton, 2 Mo. 146 1 MolyneUx v.
Downer, 5 Litt. 8; Bush v. Craig, 4 Bibb, Huey, 81 N. C. 106; Camngton v. Hola^
168; Floyd v. Jayne, 6 Johns. Ch. 479; blrd, 19Conn. 84.
Wynne v. Newmari'a Adm'r, 76 Va. 811. » Key v. Knot, 9 Gill & J. 342 ; Foote r.
Contra, McConnell's Bx'r, 63 lU. 280; Silsby, ,1 Blatohf. 545; Turaey's Ex'r v.
Nealia' Adm'r v. Çicks, 72 Ind. 374; Col- Young, 2 Tenn. 266.
NioHoiiS ». Jones and anothar.*
{Oitcv-it Vourt, N. D. Alalbama. Eebruary, 1Ç84 )
1, Eqtjitt JnmèDicTioN.
Wheré thé case shows that a multipUcîty of suits at làw will be necésgary for
the cotnplainant to obtain at làw an adéquate remedy, a biil in équity will be
maintained.
2. Injunction.
Injunctions are granted to prevent trespasses as well aa to stay waste where-
thé raischief would be irréparable and to prevent a mulliplicity of auits.
In Equity. On motion for injunction. :
The complainant's bill shows that on the sôventh of May, 1873,
Heniry Olews being the owner and in possession of certain minerai
lands in Caihoun coanty, in thia state, sold and conveyed for value
the eame to John M. Guitéan, who aftefwards, on the sixth of Junè,
1876, Bold ahd conveyed to John P. McEwan, and that thô latter, with
' Reported by Joseph P. Hornor, Esq.jOf the New. Orléans bai. ,
866 FEDEEAL BBPOBTBB.
his wife, on the sixth of March, 1880, hy proper deed, sold and con-
veyed the same to complainant, and that ail of the said conveyances
■were properly acknowledged and recorded in the county of Galhoun
prior to the year 1880, except the one last mentioned. Further, that
the défendants claim title to the same premises by virtue of an attach-
ment suit iûstituted in the circuit court of Galhoun county eai'ly in
the year 1880, by défendant Jones against said Henry Clews, a citizen
of New York, in which suit said lands were attached, a judgment re-
covered, and the lands sold by the sheriff of Galhoun county under
exécution to said Jones on May 31, 1880. Further, that at a former
term of this court complainant had instituted a suit for the possession
of said lands against one Ashley, a tenant of défendant Jones in pos-
session of the same, and reoovered a judgment, which was executed
by the marshal, who, under a writ of haberefacias possessionem, placed
complainant in possession, and that complainant took possession and
held the same by his agent and tenant, and that thereafter the de-
fendant, with fraud and illégal influence over the said tenant, dispos-
sessed complainant, possessed himself.'and has ever since detained
and now holds the same, Further, that complainant has instituted
an action for damages against said Jones in the circuit court of Gal-
houn county, beeause of hia said trespass, which action is now pend-
ing. The bill also allèges that the lands are valuable only as minerai
lands; that défendants are mining and removing ore, and thereby in-
flicting irréparable damage; that défendant Jones is insolvent, and
défendant Morgan has little, if any, means; and that only by a multi-
plieity of suits at law can complainant, if at ail, protect his rights.
The défendants, by answer not sworn to, deny that complainant is
owner of the lands described, and allège fraud and collusion in the
conveyances from Clews to complainant's grantor, and the fraud and
collusion of complainant and Ashley in obtaining the judgment in
this court for possession, which judgment has been set aside and
défendants admitted as parties, and that the suit is still pending;
and they deny ail fraud and illégal influence in obtaining possession
from complainant's tenant as set forth in the bill; and ail other
matters charged in the bill are admitted, the défendants particularly
claiming bonajide title under the attachment proceedings set forth in
bill and answer.
An admission is now filed in the record that when the bill in this
case was filed an action of ejectment by the complainant against the
défendants for the land in controversy was pending in this court;
that on November 6, 1883, the complainant dismissed his said action
of ejectment, and that there is now no action of ejectment pending by
the complainant for the land in controversy. An inspection of the
record shows that the said action of ejectment was dismissed under
an order of court rendered at last term compelling the complainant to
elect between his action of ejectment and this equity action. At this
time a motion, after due notice, is made for an injunction to restrain.
NIOHOLS V. JONES. 857
pendente lite, the défendants from wasting the lands in controversy by
removing the minerai deposits therefrom. The défendants admitting
Èhe f acts of removal of minerais, resist the motion on the two grounds
— of want of equity in the bill, and of diligence on the part of com-
plainant.
D. P. Lewis, for complaînant".
Ward (è Cahaniss and J. D. Brandon, for défendants-.
Pabdee, J. It seems clear tbat if complaiuant bas brongbt bis
case witbin our equity jurisdiction a proper and meritorious case for
an injnnction is sbown. Tbe admitted damages committed and be-
ing committed by défendants are irréparable, restitution being im-
possible, and the money value not béing ascertainable, and the défend-
ants are insolvent, or next door to insolvency. The défendants first
urge tbat as no suit in ejectment is pending, and no speciûc fraud
alleged in the bill, the action is one of ejectment in the form of a bill
in chancery. Were this ail of tbe case there would be notbing fur-
ther to do, than to refuse the motion and, sua sponte, direct the bill to
be dismissed. Lewis v. Cocks, 23 Wall. 469. But the complainant
shows one suit for damages now pending, tbe recovery of one judg-
ment in ejectment, and possession obtained thereunder, which was
lost by the fraud and illégal influences of the défendants, and tbe
case shows tbat a multiplicity of suits at law will be necessary for
the complainant to obtain at law an adéquate remedy. Equity will
entertain bill to prevent a multiplicity of suits. Oarrison v. Ins. Go.
19 How. 312 ; Story, Eq. Jur. § 928. Injunctions are granted to pre-
vent trespasses as well as to stay waste, where the mischief would be
irréparable and to prevent a multiplicity of suits, Livingston v. Lit-
ingston, 6 Johns. Ch. 497; Story, Eq. Jur. §§ 928, 929. That the
défendants deny complainant's title, and that no suit at law is pend-
ing to settle the question of title, is a very serions objection to the
granting of the injunction asked; but it seems the effect of this is
avoided from the following facts apparent on the record: (1) The
défendants do not deny nor assert title under oath. Griffin v. Bank,
17 Ala. 258 ; Rainey v. Rainey, 35 Ala. 282. (2) The title claimed
by défendant as defeating complainant's, appears to be one obtained
by attachment against a bankrupt, issued long after tbe bankruptcy
and seizing property aold by tbe bankrupt months before the bank-
ruptcy, making a very doubtful pretense of title, nearly a sham on
its face. Eev. St. §§ 5119, 5120; Bank v. Buckner, 20 How. 108.
(3) The défendants compelled the complainant to elect between bis
bill in equity and bis suit in ejectment, and now object to the state
of litigation as forced by themselves.
In the case of West Point Iran Go. v. Reymert it was beld that mines,
quarries, and timber are protected by injunction, upon tbe ground
that injuries to and déprédations upon them, are, or may cause, ir-
réparable damage, and with a view to prevent a multiplicity of suits ;
nor is it necessary tbat the plaintiff's right should be first establiahed
8S8 FEDEBAL B^|>OBTER.
in an action at law. 45 N. Y, (6 Hand.) 703. And in tliat case the
court further said :
"It was a proper case for relief by injunction if the plaintiff's right to the
mine was established, and it was uot necessary that the right should be Brst
establiahed in an action at law. The injury complained of was not a mère
fugitive and temporary trespass, for which adéquate compensation could be
obtained in an action at law, but waa an "injury to the corpus of tlie estate."
Page 705.
Sée, also, Thomas v. Oakley, 18 Ves. 184; Story, Eq. Jur. 929; and
see McLcmghlin v. Kelly, 22 Cal. 211.
The want of diligence urged against the complainant is that, as the
défendants Ëled their answer Sèptember 14, 1883, the complainant
should hâve had bis case ready for liearing at the October term fol-
lowing. The complainant, had ùntil the October rules to demur, or
reply, and then he was entitled to three months to take testimony be-
fore he could be charged with want of diligence. Besides the October
term seems to hâve been used up in determining whether complain-
ant should eleot between his actibn at law and his bill in equity, and
from affidavit on file, it seems the chancery docket was not called
from press of other business.
On the whole case, I do not see, in view of the insolvency of the
défendants, rehdering a multipilioity of suits neoessary for the com-
plainant to protect himself at law, and that the injuries complained
of are to the body of the estate, and considering that this court bas
forbidden the complainant to proseCute his suit at law and his bill in
equity at the same time, how, in «quity, an injunction preaerving tfaa
rights of the parties, pending the suit, can be ref used.
Thé rights of the défendants will be saved by complainant's giving
bond in the sum of $1,000.
Newmah, Eeceiver, v. Moody.'
{Circuit Court, JT. D. Alabama. February, 1884.)
1. Dbmtjbker.
A démurrer flled without leave; and after ansWer and submission, cornes too
late ; by anpwering, défendant waived ail objections tothe form and manner of
proceeding.
2. KBHBARrNe— Equity Rulh 88.
Where no appeal lies from thedecree to the suprême court it was within the
discrétion of the court, under equity rule No. 88, to allow a rchearing before
the end of the next term, even if the decree was final.
3. Rbcbivek.
Where an administrator cornes into the possession of funds belonging to the
estate of his décèdent, and accoijnts therefor to the state court appointing him,
long prior to notice from this court, he cannot be held to again account for or
. pay said money to a receiver subsequently appointed by tliis court.
iReported by Josepli P. Hornor, Bsq., of the New Orléans Dar.
NBWHAÏI V. HOODT. 859
At the October term, 1881, the foUowing pétition was filed :
" To the Hon. John Bruce, presiding in the Circuit Court of the United
States for the Northern District of Alàbama: In the case of W. H. John-
son and others against "W". R. Alexander and others, penrling in sald court,
your petitioner, W. P. Newman, is receiyer, having been appointed as such
at a former term thereof. Your said petitioner allèges that there is now in
the hands of Amos L. Moody, of Franklin county, Alabama, within said
Northern district, the sum of flve hundred and forty-one ',i5-100 dollars be-
longing to the estate of Jacob V. Johnaohj deceased. Your petitioner, there-
fore, prays for an order directing said Moody to appear at the next term of
this court to show cause, if any he hâve, why adecreeshould not be rendered
against him in f avor of your petitioner for said money, and he will ever pray."
Thereupon the foUowing order -was entered :
"It is hereby ordered that notice be issued and served on Amos L. Moody,
of Franklin county, Alabama, to appear at the next term of this court, and
show cause, if any he haVe, why a decree should not be rendered against him
in favor of the said W. P. Newman, receiver as aforesaid, for the sum of flve
hundred and forty-one 25-100 dollars, alleged to be in his hands, belonging to
the estate of Jacob V. Johnson, deceased, of whose estate the said Newman
is receiver.
"This October 25, 1881.
[Signed] "John Bruce, Judge."
At the foUowing term, in April, 1S82, the défendant Moody filed
the foUowing answer :
" In answer to the citation served on him in the above-styled cause, Amos
L. Moody, as administrator de bonis non of the estate of Jacob V. Johnson,
States that the only assets that hâve corne into his hands as administrator were
85 shares of the M. &. C. E. R. stock, whieh was sold under the orders of the
probate court of Franklin county, and from the sale thereof the sum of $541.25
was realized. The said sale was dnly eonflrmed, and the proceeds thereof ex-
pended and disbursed in part payment of the cost of administration, ail of
which will be more fully seen by Exhibit A, showing the difCejrent payments
made out of said f und, and Exhibit B, the docrees of the court theréon, and
which are made as part of this answer. He f urther states that said f und was
garnished in his hands by process of garnishment served on W. D. Bowen
and respôndent from the circuit court at Lauderdale county in favor of W.
A. Bassinger v. Keuben Copeland, AdrrCr ofsaid estate of Jacob B. Johnson,
and W. D. Bowen and respôndent Amos L. Moody, long prior to issuance and
service of said citation. Now, having fully answered, respôndent prays to be
hence dismissed with his reasonable costs in this behalf expended.
[Signed I "Amos L. Moodt."
Thereupon the foUowing was rendered :
" This cause is subœitted on pétition of William P. Newman, receiver, etc.,
for decree against Amos L. Moody, and it appearing to the satisfaction of the
court that the said Moody received, on the eleventh day of June, 1880, flve
hundred and forty-one 25-100 dollars of moneys belonging to the estate of the
said Jacob "V. Johnson, deceased; and it f urther appearing to the satisfaction
of the court that said Moody has disbursed the same without authprity pf law
and contraryto the orders of this court: It is therefore ordered,. ad judged,
and decreed by the court that said Moody pay to said William P; tTewman, as
such receiver, the sum of Six hundred and twenty dollars and seventy-four
cents, that being the principal, with the interest added thereon to this date*
860 FEDEBAIi BEPOBTBB.
besides the costs of the proceedings upon thls pétition, for which let exécution
issue.
"Apriî 14, 1882,
[Signed] "John Bruce, Judge. "
At the succeeding term of court tlie foUowing was entered :
"Corne the parties by their solicitera, and, upon motion and showing deemed
satisfaotory to the court, it is ordered that the former submission of the par-
ticular matter of the pétition of Wm, F. Newman, receiver, against A. L.
Moody, and the answer of said Moody to said pétition, be set aside and a new
submission of said matter begranted, to be heard and decided in vacation, and
that the counsel be allowed thirty days in which to file brief s ; aiso that said
A. L. Moody hâve leave to file an amended answer, and that he be allowed
fifteen days within which to file said answer. "
The défendant has filed a demurrer, and an amended answer and
demurrer, and the cause has been submitted to the circuit judge on
the record and briefs.
L. p. Walker é Betts, for receiver.
O'Neal é O'Neal, for défendant.
Paedbe, J. The demurrer filed by défendant contains 23 counts,
but practically makes but three points : (1) That the receiver had not
been previously authorized nor instructed by the court to institute the
suit; (2) that the proceedings were summary, and not by regular bill
and subpœna; and (3) the remedy should hâve been by action at law.
The amended answer states the same défense as the original, but
more explicitly, and, unlike the original, is properly verified. The
brief filed by défendant is devoted to sustaining the points made by
demurrer, of which it is sufficient to say that the demurrer was filed
too late, being filed without leave, and after answer and submission.
By answering, défendant waived ail objections to the form and modes
of proceeding.
The sole point made by counsel for the receiver is that the decree
was final with the April term, 1882, and beyond the power of the
court to vacate at the subséquent term. If it was a final decree and
appealable the point is well taken. Cameron v. McRoberts, 3 Wheat.
593; McMicken v.Perin, 18 How. 507. "No rehearing shall be granted
after the term at which the final decree of the court shall hâve been
entered and reoorded, if an appeal lies to the suprême court. But, if
no appeal lies, the pétition may be admitted at any time before the
next term of the court, in the discrétion of the court." Equity rule 88.
I doubt if the decree was a final decree. It in effect only ohanged
the custody of the fund in controversy. It was yet to be disposed of
by the court, and if it had been paid over to the receiver, could, if
justice required, hâve been turned back to the défendant. As it was
not paid over, it waè within the discrétion of the court to re-examine
the question as to whether it should be paid over. But as no appeal
lay from the decree to the suprême court, under the equity rule re-
ferred to, it was within the discrétion of the court to aUow a rehearing
BIiAIB V. 8T. LOUIS, H. <fe K. B. 00. 861
beîore the end of the next term, even if the decree was final. On the
merits of the case equity and justice are with the défendant.
Aside from the answers and exhibits attached, there is no évidence
adduced. From the answers and exhibits it appears that the défend-
ant, as administrator de bonis non, with the will annexed of Jacob V.
Johnson, came into possession of the sum of $541.25, long prior to
the appointment of piaintiff as receiver in the case of W. H. Johnson
V. W. R. Alexander, by this court, and that prior to notice he (défend-
ant) had fuUy disbursed the same under orders and judgments of the
probate court of Franklin county, by whieh court he was appointed ad-
ministrator, and with which court he haa settled his accounts. On
what equity he can be compelled to pay again bas not been pointed
out. The former decree was based on the ground "that said Moody
bas disbursed the same without aiithority of law, and contrary to the
orders of this court." This does not appear at this time, but the con-
trary is fuUy established. Moody was not a party to the main case,
and he disbursed the money under orders of the court which appointed
him administrator long prior to notice from this court.
A decree will be entered at the next term, vaoating the decree en-
tered herein at the April term, 1882, and dismissing ail proceedinga
agaiust Âmos L. Moody, with costs.
Blaib V. St. Louis, H. & K. E. Co.'
(OireuU Court, E. D. Missouri. March 24, 1884.»
1. LiBirs TTPON Propertt m the Hands os- a Rbceivbb.
Where a railroad has been placed in the hands of a receiver hy this conrt,
persons claiming statutory liens may iie permitted to flle them hère with the
Bame force and eflect as if flied respectively ia the state courts.
2. 8ame — Statitoory and Eqoitablb Liens on the Same Footino.
Where like demands are presented from otlier states in which no statutory
lien therefor exista, they will be entitled to the same iiatus as statutory liens.
In Equity. Order.
Butler, Stilman é Hulbard, for complainant
WiUiam P, Harrison, for défendant,
Tbeat J. Inasmuch as many intervening pétitions bave been filed
in this oase, and others may be, praying for orders on the receiver
to pay the sums claimed out of the net income of the défendant cor-
poration as operated by said receiver, and also out of the funds by
him raised on his certihcates issued, and to be issued, under the or-
ders of this court, as a first lien on the property of said corporation,
and ou the property by him acquired under the orders of this court, in
>B«ported by BenJ. F. Rex, ISsc^., of the St. Louis bar.
862 TEDEBAL BEEOBTEB.
the course of Tiis administration of his ifust, and inasmuoh aa some
of said pétitions may rest on statutory liens, conditioned on the no-
tice and proceedingB required by statute, —
It is ordered that, to af oid expense and delay, ail persons claiming
statutory liens be permitted to file the same in this court, with the
same force and effeet as if filed, respectively, in the state courts.
It is further ordered that where like demands are presented from
other states, in whioh no statutory lien therefor exists, they shall be
entitled to the same status, so that statutory and équitable liens may
rest on a like basis.
Inasmuch as this court has heretofore settled the rules of law and
equity by which ail intervening claims in cases like this are to be ad-
judged, and the United States suprême court has more definitely and
fully preseribed such rules, in Fosdick v. Schall, 99 U. S. 235; Bar-
ton V. Barhour, 104 U. S. 126; Miltenberger v. Ry. lOQ U. S. 286;
S. C. 1 Sup. et. Eep. 140; Union Trust Co. v. Soutker, 107 U. S.
591; S. C. 3 Sup. Ct. Eep. 295; Union Trust Co. v. Walker, 107 U.
S. 596; S. C. 2 Sup. Ct. Rep. 299.
It is ordered that ail intervening claims filed, or that may here-
af ter be filed, in this case, be referred to the spécial master herein, for
his report thereon, his reports to state distinctly whether the respect-
ive demands are such as should be paid by the receiver under the
rulings of the United States suprême court, or are merely claims at
large against the défendant corporation, devoid of a lien, statutory or
équitable, prior in right to the lien of the mortgage sued on.
It is further ordered that when an intervening claim, so far as the
facts on which it rests, fully appears from the books of the défendant
to be correct, the master may proceed to pass thereon without further
évidence, unless, in his opinion, further évidence is needed, or some
person in interest appears to contest the same.
It is further ordered that the master give due notice to the respect-
ive claimants or their attorneys, also to the trustée and receiver or
their attorneys, when and where he will proceed to consider and pass
upon their demands.
The right of exception to proceedings before the master and to his
reports is reserved. The receiver should, in ail of thèse demands,
hâve notice of the time and place of hearing the same before the mas-
ter and in court; also the soliciter of the complainant, with leave to
be heard in person or by attomey.
To avoid delay and expansés the receiver and complainant should
hâve an attomey to attend to this business who is an officer of this
court, and ready to conduct the business promptly and efficiently, and
to accept service accordingly.*
' The same order was made in the case of Central Trust Oo. v. Texcu & St. L. Ry.
Oo.
VABina V. LOUISYILUB .fe a. B. 00. &o3
DoKABiVni and otbers v. fioBBSTS ana otners.'-
{Oireuit OouH, U. D. MKOuri, March 21, 1S84.)
1. Dkpositiows— Certipicate.
Wliere dépositions are taken de ben» etae, under section 865, Rev. St., beforo
a notary, his certi&cate should atate, among otlier thiugs, (1) that he is aot a
party in luterest ; (2) that tlie dépositions were reduced to writiag in the dé-
ponent 's présence ; and (3) in witat court it i^ to be used.
3. Samk — Ahendmkntb.
Wliere a notaiy's certificate fails to comply witU tbe rei^uiremeats of law,
leave may be given to amend it.
In Equity. Motion to suppress dépositions.
The gronnds of the motion sufficiently appear frota the opinion of
the court.
Walker é Walker, for complainants.
Lucien Eaton, for défendants,
Tbba.t, J., (prally.) The motion to snppress mil be snstaîned for
a nnmber of reasons : First, tbe dépositions are certified as taken in
the wrong court; second, it is not stated that the notary taking them
was not a party in interest; third, it is not stated that they were re-
duced to writing in the présence of the déponent,— ail of which prop-
ositions hâve obtained ever since 1789. The motion to suppress will
be Bustained. Thèse matters being, as held by the suprême court
OTer and over again, in dérogation of the common law, the party must
conf orm to the requirements of the statute, otherwise the dépositions
will not be received.
Leave is given to withdraw the dépositions in order ihat the no-
tary'a certiâcate maj be amended.
WAsma and another ». Lootsvillb & NASHyiLts R. Co.*
(ŒreMit Oourt, 8. D. Alabana. February, 1884.)
L OoimtAOTB.
Wheuwritingg which amonnt to a contract between the parties are not com-
plète in themaelves to show what the contract was, the coiut muât look to the
■arrounding cixcumstances when the contract was made.
Van Epp» V. WaXihe, 1 Woods, 598.
The Orient, 4 Woods, 262; S. 0. 16 Fbd. Réf. 916.
L liBAtns.
The implication of law, resalting ftom a payment of rent nnder a tenancy at
will, that the tenancy l>ecomes one from year to year, is not strong eni'Ugh to
overcome the fact that theré was a distinct understanoing betweea Ou> parties
as to the nature of the tenancy.
IBaported bj Ben]. F. Kez, £aq., of tta» St. Lonlt bar.
• Bepart«d by Joieph F. Hornor, Eaq., of tho New Orleani bar.
864 FEDEBAL BEFOBTEB.
Thia Î8 an action of ejectment brought by the plaintifs, Moses War ■
ing and Virginia E. Mitchell, against the Louisville & Nashville Eail-
road Company, to recover the possession of a triangular lot of ground
near the foot of Théâtre street, in the city of Mobile, and damages for
its détention. A jury has been waived by written stipulation, and the
case submitted to the court.
From the évidence adduced on the trial of the case the court Snds
the foUowing as the facts :
(1) That on the thirteenth day of March, 1877, the plaintififa, Moses "Waring
and Virginia E. Mitchell, under a written lease to E. D. Morgan and James A.
Raynor, as trustées and receivers, etc., of the property described in the plead-
ings, for the period of flve years, commencing on the flrst day of April, 1877,
and ending on the first day of April, 1882, for which the lessees were to pay
as rent the sum of $400 per annum, in quarterly payments, viz., $50 to War-
ing on the twenty-fifth days of July, October, January, and April of each year,
and the like sum of $50 to Mrs. Mitchell, on the same days of payment. That
said lessees went into possession under said lease, and made said rent pay-
ments regularly, and continued to occupy the property under the lease until
May, in the year 1880, when they assigned and transferred ail their interest
in the said lease and leased property to the défendant, the Louisville & Nash-
ville Eailroad Company, who thereupon entered, under the said lease, as ten-
ants of said Waring and Mitchell, and paid the rent under said lease to said
Waring and Mitchell until April 1, 1882, when said lease expired.
(2) That at the expiration of the said lease, the said Louisville & Nashville
Railroad Company appUed to said Waring, representing and acting for himself
and Mrs. Mitchell, to hâve the lease renewed, but Mr. Waring declined to re-
new the lease or to make a new one of anysort, but at the sametime told the
agents of the défendants that the plaintiffs would not interfère with the de-
fendants continuing to use the lot as It had previously done, until the plain-
tiffs should corne to some deflnite conclusion as to what they would do about
the lot, and the défendant continued in the possession and occupancy of the
same.
(3) That negotiations were thereupon entered into between the parties, the
plaintiflEs desirïng some qualification of the use of the premises, and also de-
siring to secure a side track Connecting with the Mobile & Ohio Eailroad, and
the défendant desiring to purchase or secure a permanent lease.
(4) Pending the negotiations the following writings passed between the
parties, to-wit:
"Louisville & Nashville Eailroad Co.
To Mrs, Virginia Mitchell, Dr.
1882. Mobile.
August 2d. For rent of ground foot of Théâtre street, Mobile, for tracks
entering freight-yard, as per lease.
For quarter ending July 25, 1882, .... $5q
(Fifty Dollars.)
Correct: Approved:
R. P. Bkown, Clerk. J. T. Habahan, Superintendent.
Audited:
D, W. C. RowLAND, Gren. Supt. 0. Quaebieb, Comptroller
Eeceivetl, Fifty 00-100 Dollars.
Date 4th Augtist, 1882. Vihchnia E. Mitchell,
Witness: By Wm. Baknewall, Agent.
W. S. Abmouk, Cashier.
WABma V. LODISVHiLB A N. B. 00. 865
"LomsviLLE & Nashville Eailhoad Co.
To Mr. Waring, Dr.
1882. Mobile.
August 2d. For rent of ground foot of Théâtre street, Mobile, for tracks
entering freigbt-yard, as per lease, in hands of J. T. Haialian.
For quarter ending July 25, 1882, $50
(Fifty Dollars.)
Correct: Approved:
E. P. Brown, Clerk. J. T. Hakahak, Superîntendent.
Audited:
D. W. C. EowLAND, Gen. Supt. C. Quabrieb, Comptroller.
Beceived fifty dollars, due July 1, 1882.
Date Augmt 4, 1882, M. Waeing.
Witness:
W. S. Armoub, Cashier."
The words "fifty dollars, due July 1, 1882," were inserted by plaintif!
Waring when the document was presented to him by the agent of the Com-
pany.
On August 4, 1882, there was no lease in the hands of J. T. Harahan, ex-
cept the old lease referred to in the flrst flnding aforesaid.
(5) That thereafter negotiations looking to a permanent arrangement
were carried on between the plaintifEs and the agents of défendant, at least
so far as that plaintiff Waring wrote several letters, and received from J. T.
Harahan, defendant's superîntendent of division, the following reply:
"Louisville & Nashville Railroad Company, operating New Orléans, Mobile
& Texas Railroad, as reorganized.
J. T. Harahan, Supt. Office of Superîntendent,
New Orléans, La., Sept. 11, 1882.
M. Waring, Esq., Mobile, Ala. — Deab Sir: I bave been patiently wait-
ing to hear from our folks in Louisville, but as most of them are absent in
New York I cannot hear from them for a few days yet. Will let you hear
about tbe lease soon as I can hear from them.
Tours, etc., J. T. Harahan, Supt."
And finally, prior to November 25, 1882, said Waring informed said de-
fendant that the plaintiffs would make no aiTangement for said Louisville &
Nashville Eailroad Company to continue to occupy the lot unless said railroad
Company would stop using it as a switching ground for their cars; that this
the said Louisville & Nashville Eailroad Company declined to agrée to, and
thereupon, on the twenty-flfth of November, 1882, a written notice to quit
was signed by the plaintifEs and regularly served on the défendant, and on the
flrst day of December another written paper signed by both of the plaintifEs
demanding the possession of the property, which défendant neversurrendered,
but still holds.
(6) That the rental value of the property exceeded $400 per year.
Peter Hamilton and Thomas A. Hamilton, for plaintiffs.
Gaylord B. Clark, for défendant.
Pardeb, j. On the trial of the case, after the plaintiffs had closed
and the two writings mentioned in finding "four" were offered, coun-
sel for défendant moved 'to strike ont ail the paroi évidence adduced
by plaintiffs in the case which tended to vary the written receipt and
contract and the implication of law arising from the acceptance of
v.l9,no.l2— 55
S66 fEDSBAL BEPOBTBB.
rent, which would exclude ail of plaintiffs' évidence, save tHe lease
and notices to quit, aforesaid, on the ground that the said writings con-
stituted a written contract between the parties, complète in ail its parts
as aided by implications of law, for the lease, of the property in ques-
tion, and that paroi évidence is incompétent to vary the terms of such
contract. This motion was reserved to be passed upon with the mer-
its. The view that I take of the case is that after the expiration of
the five years' lease, under the understanding and consent of the par-
ties, the continued holding of the défendant was as a tenant at will.
Either party could hâve ended the tenancy without consent of the
other. See Bouv. Law Dict. verho, "Tenant at Will." This was un-
doubtedly thé case down to August 4, 1882, when a quarter's rent
was paid and the writings purporting to be a charge for and a receipt
of rent were given. And that this was the view taken of it by the
parties is shown by the negotiations that were carried on with a view
to obtain a lease for a fixed term. This simplifies materially the
question of the force and effect to be given to the writings of August
4, 1882.
Conceding tbese writings to amount to a contract between the par-
ties, they are not complète in themselves to show what the contract
was. By themselves, they do not make a lease for a quarter, nor for
a year, nor for the term of the old lease. We must look to the stir-
rounding circumstances. "Another rule of law, just as well settléd,
is that the obligation of a contract is what the parties intended to
mean when they entered into it. What they both understood to be
the contract, that is the contract; and to arrive at the understanding
of the parties, the courts are authorized to look at the circumstances
which surrounded them when they made it." Van Epps v. Walsh, 1
Woods, 598; The Orient, 4 Woods, 262; S. C. 16 Fbd. Eep. 916.
In this case, what were the surrounding circumstances when the writ-
ings were made ? The défendant was a tenant at will of the premises
.in question, desirous of purchasing or obtaining a permanent lease.
The plaintiffs were not willing to sell, nor lease for a fixed time, un-
less with stipulations as to use, and they desired concessions as to a
side track to connect with the Mobile & Ohio road. There was no
lease, save the old and expired one, in the hands of Harahan, And
negotiations were pending between the parties for a new lease. That
the plaintiffs intended to grant a lease by the writings is negatived
by ail the circumstances. That the défendant intended by thèse writ-
ings or that its agents thought ît had acquired a lease for any fixed
period is negatived by ail the circumstances, and by the letter of
Harahan, superintendent, written a month afterwards. The legiti-
mate construction of the writings, then, is that they were receipts for
rent past due under a tenancy at will. The implication of law result-
ing from a payment of rent under a tenancy at will, that the tenancy
becomes one from year to year, (see Bouv. Law Dict. verbo, "Tenant at
Will, " and cases there cited,) is not strong enough to overcome tha
UABLOB V. TBZ^S A p. BT. 00. 867
faot tbat tliere was a distinct understanding between the parties as to
the nature of the tenaney. Woods, Landl. & Ten. 25, 60, 61, and
cases cited; and see, also, Crommelin v. Thiess, 31 Ala. 418. Had.the
défendant held over after the expiration of the five-year lease, -without
any agreement on the part of the plaintiSs as to the oharaeter of such
holding, the défendant would hâve been a tenant on sufferance, the
plaintiffs having a right to elect whether to résume possession or to
treat the défendant as a tenant from year to year. Had the défend-
ant held over without any agreement with the plaintiffs, and had paid,
and plaintiffs had received, reut, the law would hâve implied a conr
tract of lease from year to year. Had the défendant held over with-
out any agreement with the plaintiffs, and then the writings of Àugust
4th had been passed between the parties, I am inclined to the opin-
ion that the law would hâve implied a renewal of the five-year lease;
and this by fair construction of the writings themselves, otherwise
unexplained.
But the case made différa from ail of thèse hypothetical cases. By
understanding of the parties the défendant held over as a tenant at
will, and thereafter the minds of the contracting parties did not meet,
and although rent was paid and received on the terms of the old lease,
the character of defendant's holding was not changed.
Mablob V. Texas & P. Bt. Co.*
{Oireuit Court, 8. D. New York. Apri 14, 1884.)
1. MoBTflAOS BomtB ov Railboad— RioHT OF Action fok Ihtbrkst.
It matters not whether the bonds of a railroad are secured by a mortgage mak-
ing the interest a lien upofl the lands of tlie company or upon its net earnings,
or upon bo^h, or whether there is no mortgage at ail. If there is an agree-
ment to pay interest and it is not paid, there ia a breach of the bond for which
the holder can maintain an action.
S. Baub — I» Case of Scbip Tbndkebd ra Lieu of Ikt^rbst.
A railroad mortgage provides that in the event of a failure of net earnings
Bufflcient to pay interest on the bonds secured by it, the company can, in its
option, issue certain scrip in lieu thereof. In such a case the bondholder is
not bound to accept the scrip nnleas the fact exists which authorizes the com-
pany to issue it, nor is the burden upon hira to prove a négative. His right of
action is prima fade perfect upon proof of non-payment of interest on the pre-
sentment of his bond at the time when and the place where the interest u
made payable.
Motion to Strîke ont Part of Answer.
Dos Passas Bros., for complainant.
DiUon dSwayne and W. S. Pierce, Jr., for défendant.
Wallaob, J. The only questions which seem to be involved în thia
case are (1) whether the mortgage bonds of the défendant oontain a
promise for the payment of interest annually on the first day of July
■Affirmed. See 8 Sup. Ct. Rep. 31t.
868 FEDERAL BBPOBTEB.
in each year; and (2) whether défendant has exercîsed its option to
issue scrip for the interest, convertible into capital stock of the Com-
pany, and receivàble at par for the purchase of the company's land
at schedule priées.
The first question is one of law, to be solved by reading the bonds
and mortgage; the second is one of fact.
1. The bond, so far as is relevant to the controversy, reads as fol-
lows:
"The Texas & Pacific Eaiiway Company hereby acknowledges itself to be
indebted to , of , or assigns, in tlie sum of one thousand dollars,
lawful money of the United States of America, which sum the said company
promises to pay to the said , or assigns, at the office of the company in
the city of New York, on the first day of January, A. D. (1915) one thou-
sand nine hundred and lifteen, with interest thereon at the rate of seven per
cent, per annum, payable annually on the first day of July in each year, as
provided in the mortgage hereinafter mentioned. This bond is one of a sé-
ries of bonds numbered consecutively from one to eight thousand nine hun-
dred and eiglit, of the dénomination of one thousand dollars each, of like ténor
and date, the payraent whereof is secured by a first mortgage of even date
herewith, duly recorded, upon certain lands heretofore granted to the Texas
& Pacific Raiiway Company by the state of Texas. Thia bond has also, as
security for the interest, a mortgage lien upon the net income of the said the
Texas & Pacific liailway Company, derived from operating its lines of raii-
way east of Port Worth, in the state of Texas, after providing for the operat-
ing expenses, the current repairs, and reconstructions, and the interest upon
the first and second mortgage bonds secured upon said lines of raiiway, and in
case such net earnings shall not in any one year be suffioient to enable the
company to pay seven per cent, interest on the outstanding bonds, then scrip
may, at the option of the company, be issued for the Interest; such scrip to
be received at par and interest, the same as money, in payment for any of the
company's lands acquired as aforesaid in Texas, at the ordinary schedule
priée, or it may be converted into capital stock of the company when pre-
sented in amounts of $100 or its multiple."
There seems to be nothing in the language of the mortgage to
qualify the promise of the bond. It is quite immatërial whether
the mortgage secures the interest of the bonds by a lien upon the
lands of the company, or by a lien upon the earnings of the com-
pany, or by a lien upon both, or whether it is not secured at ail by
the mortgage. If there is an agreement to pay interest, and ifc is not
paid, there is a breach of the bond for which the holder can main-
tain an action. Whether his interest caa be coUected through a
foreclosure of the mortgage is a différent inquiry, and not relevant
now. It would hâve been simple enough to hâve made the interest
payable only ont of the net earnings of the company's raiiway by
the terms of the bond, if that had been intended.
2. By the terms of the bond the défendant reserved the option,
in case the net earnings of its raiiway were not suffioient in any
year to enable it to pay the interest on its bonds, to issue scrip for
the interest. The complainant avers that the défendant has neither
paid the interest nor exercised the option. By its answer the de-
HABLOB V. TEXAS & V. BT. 00. 869
fendant dénies that it bas failed to exercise tbis option, and dénies
that tbe plaintiff bas demanded payment of the interest. Tbe fact,
wbether the net earnings of tbe defendant's railway are suflScient in
any one year to pay the interest or not, is one peculiarly witbin its
knowledge, and it is not incumbent upon a holder of tbe bond to
assume the burden of proving the négative. He is not bonnd to ac-
cept the scrip unless tbe fact exists wbich anthorizes tbe- défendant
to substitute scrip for money. His rigbt of action is prima facie per-
fect upon proof of non-payment of the interest, on the presentment
of bis bond at the place where the interest is made payable. It then
devolves upon the défendant to show the existence of the fact which
authorizes it to tender scrip, and then the exercise of the option.
Tbis gênerai view of the questions at issue bas been stated in order
to indicate what issues are fairly presented by tbe pleadings, and
what extraneous matter in the answer bas no proper place there.
The plaintiflf's motion to strike out as irrelevant and redundant is
granted, so far as it will eliminate from the answer any and ail pro-
ceedings, resolutions, mortgages, constructions, understandings, and
intentions of the défendant, which are not recited in the bonds in suit,
or in the mortgage securing thèse bonds, because the plaintiff was not
a party to tbem, and is not affected by them. Tbis results in strik-
ing out nearly 40 folios of the answer, — a resuit which justifies tbis
motion, although generally motions of tbis character are not to be
encouraged. In view of the averments of the answer at folios 53 to
63, the plaintiff's motion to make another part of the answer more
definite and certain is denied.
It is not intended by tbis décision to preclude the défendant from
tbe benefit of anything contained in the mortgage which may be urged
on tbe trial of the action as qualifying the prdmise set fortb in the
bonds. The bonds and mortgage are one obligation, and may be
read and construed together. Neither is it intended to indicate what
action on the part of the défendant is a due exercise of its option
to pay interest in scrip.
870 federal eepokter.
Hall v. City of New Orléans.*
{Oircuit Court, E, D. Louisiana. February, 1884.)
1. ACT OV liOBISIAKA, Ko. 73 OF 1872.
The act of the législature of Louisiana, No. 73 of 1872, approved April 26, 1872,
(Sess. Acts 1872, p. 124,) was in force until the passage of the premium bond
act, March 6, 187e, (Sess. Acts 1876, p. U.) By section 15 of the act of 1872 a
sinking fund was crealed for certain bonds of the city of New Orléans, in whioh
fund the bondholders interested wcre declared to h'ave a vested interest. The
taxes ievied and collected under the act were insufflcient to pay the coupons
maturing while the law was in force. Beld, that liolders of coupons maturing
af ter the repeal of the law acquired no right to ihe fund ; holders of coupons
maturing before the repeal of the law were entitled to the fund in the hands of
the fiscal agent, and could hâve enforced collection as the taxes were collected
and received by him.
2. Pkescription — Plbd&b.
As long as the debt secured remains unpaid and the pledge continues In ex-
istence, whatever be the tiine elapsed since maturlty, the défense of piescrip-
tion cannot be raised. Forstall v. Consolidated Aaa'n,3i La. Ann. 776. As to
the coupons which fell due prior to the repeal of the act of 1872, prescription
has been iuterrupted ; those which fell due after the repeal, and inore iJian flve
years prior to the institution of this suit, are presc.ibcd,
At Law.
E. H. Farrar, for plaintifF.
Henry G. Miller and Chas. F. Buck, City Atty., for défendant.
Pakdee, J. Act No. T3, approved April 26, 18-72, (Sess. Acts 1872,
p. 124,) was in force until the passage of the premiun bond act, March
6, 1876. Under the provisions of section 15 of the said act of 1872
a sinking fund was created for ail city bonds for which no other retir-
ing provision existed by law, in whicli fund the bondholders interested
were declared to hâve a vested interest. In pursuance of this sec-
tion taxes were Ievied in 1873 and 1874, which were collected from
time to time to this day, whereby a trust fund has been in the hands
of the fiscal agent of the city, particularly so, until it was distributed
by order of this court in the case of Laver v. The City (not reported)
in the year 1883.
The taxes so Ievied and collected hâve been insufficient to pay the
coupons maturing while the law was in force. As the fund was in-
sufficient to pay coupons maturing while the law was in force, hold-
ers of the coupons maturing after the repeal of the law acquired no
right to the fund, for in no sensé could it be said to be a trust fund
for their benefit. The case is différent with regard to the holders of
coupons maturing before the repeal of the law. ïhey were entitled
to the f unds in the hands of thé fiscal agent, and could hâve enforced
collection as the taxes were collected and received by the agent.
In the case of Forstall v. Consolidated Ass'n the suprême court of
Louisiana say:
"It is no objection that the object or thing pledged was not deliveredtothe
créditer. Even in the absence oi a law contraot, it is lawf ul to stipulate that
I Reported by Joseph P Hornor, Esq., of the New Orleaiia bar.
OOLB V. OITT OF LA. GBANaE, S 71
the pledge ma7 remain in trust in tlie hands of a thlrd person, even In thoae
of the debtor, provided it be held preeariously. * * * As long as the
debt thus secured remains unpaid and the pledge continues in existence,
whatever be the time elapsed since maturity, the défense of prescription
cannot be raised." See 34 La. Ann. 776, and cases there cited.
The coupons sued on in thie case are from bonds within the provis-
ions of section 15 of the act of 18T2 ; those which f ell due prior to the
repeal of the act, March 6,. 1876, hâve been secured by the fund pledged
for their benefit, and prescription has been interrupted ; those which
fell due after the repeal, of the said act, and more than five years
prior to the institution of this suit, are prescribed. Judgment will
be entered accordingly.
BiLiirNas, J., concurè.
CoLE. V. City of La Grange.^
Sanford V. Same.^
{Circuit Court, E. D. Missouri. March 22, Ï884.)
CoHeTITTTTlOTIATj L.VW — TAXATION IN AlD OP PRIVATE-EnTERPRISŒS.
8tate législatures hâve no authorityto authorize taxation in aid of prlTate
enterprisea or objecta, even where there la no express constitutional prohib-
ition.
Demurrers to the Ânswers.
Thèse are suits upon interest coupons eut from bonda issued as a
gift from the city of La Grange, Missouri, to the La Grange Iron &
Steel Company, a private corporation, under an act of the législature
of Missouri. The answers set up as défenses, (1) gênerai déniais;
and (2) that the issue of the bonds was ultra vires^ and contrary to
law,
Sanders & Haynes, for plaintififs.
David Wagner, for défendant.
Treat, J. Thèse cases rest on the same facts and propositions of
law. The pur pose is to hâve the judgment of the court on the spécial
défense set up; yet the demurrer is gênerai, and each answer contains
a gênerai déniai. That technioal point seems to hâve been over-
looked; but as the parties hâve presented the subject on spécial dé-
fenses, by mutual understanding, the court announces its views with
respect thereto. It is not deemed necessary to travel over the ground,
theoretical and elemental, on which the many cases cited rest ; for
the books ànd adjudged cases are fuU of the law-learning involved.
iReported by Benj. F. Rex, Esq., of the St. Louis bar.
872 FBDBBAIi BEPOfiTEB.
The main proposition alwaya is as to the authority of a county or
town or city to incur the obligations sued on, whethôr evidenced by a
bond or otherwise. In thèse cases the suits are on coupons detached
from bonds issaed by the défendant, pursuant to the required vote of
the citizens, as a gift to a private manufaoturing corporation. There
was a législative enactment, to-wit, the charter of the défendant,
which in terms permitted the issue of the bonds, the propervote etc.,
having been duly had. The state constitution contains this clause :
"The gênerai assembly shall not authorize any city, county, or town to be-
come the stockholder iu, or to loan its crédit to, any company, association, or
corporation, unless two-thirds of the qualifled votera of such county, city, or
town, at a regular or spécial élection to be held thereon. shall assent thereto. "
It is contended that as there is no spécifie prohibition in the con-
stitution against the issue by a city of its bonds as a gift to a private
enterprise, if a two-thirds majority of the citizens so vote, the bonds
might be held valid in the hands of honafide holders, and the prop-
erty within the corporate limits remain subject to taxation to meet
such alleged obligations. It is true the state constitution in express
terms refers only to becoming a stockholder or loaning crédit, and
says nothing about gifts. Why not ? Because it was considered by
ail familiar with the elemental principles of free governments that
they were not founded and did not exist for the confiscation of pri-
vate rights, or, through the exercise of the taxing power, appropriate
one mau's property for the private benefit of another.
The court, at the close of the argument, asked if it was contended
that inasmuch as the constitution required a two-thirds vote only as
to becoming a stockholder or loaning municipal crédit, therefore, a
city could, without vote, give away its corporate funds or revenues,
or impose a tax to make good a promised gift. Inasmuch as it is
beyond the legitimate sphère of munioipalities to use their taxing or
other functions lor mère private interests; and inasmuch as it had
been settled that they could, as stookholders or otherwise, aid public
enterprises, there was need of restricting the latter by exaoting a vote
of the people, but no need of providing against the former. It is not
a "casus omissMS,"nor anintentional lioense forindiscriminatesquan-
dering of revenues by way of donations. When the required vote is
had for stock or loans it is supposed the city reçoives value or secur-
ity therefor, and the constitution placed restrictions thereon. Is it
to be asserted that because no such restrictions were placed on gifts,
that, therefore, the two-thirds of the voters of a city could impose on
ail taxable property heavy taxes for years, to make good a mère gift
to a private manufacturing corporation ? The question answers itself .
If such a course could be pursued for one private enterprise it could
for ail.
It is not necessary to review the many cases cited. A c'ourt cannot
ignore that the fédéral and state constitutions — nay that ail state
constitutions — ^prohibit the taking of private property even for public
IN BE: liETCHWOBTH. 878
•uses wîthout Just compensation. Is it to be argued, therefore, that
private property can be taken for private uses, either with or without
just compensation ? The suprême court of the United States stated
the elemental thought underlying American constitutional law when
it declared that an attempt, through the guise of the taxing power,
to take one man's property for the private benefit of anotber is void,
an act of spoliation, and not a lawful use of législative qr municipal
functions.
There hâve been so many well-considered cases in the United States
courts and in the state courts on this subject that it would be a work
of silpererogation to repeat their arguments. It must suffice that the
weight of authority and sound reason concur in holding bonds and
coupons like those in question void ab initio. . Loan Ass'n v. Topeka,
20 Wall. 665; Corn. Bank v. City of lola, 2 Dill. 353; Parkersburg v.
Brown, 106 U. S. 487; S. G. 1 Sup. Ct. Eep. 442; Allen v. Jaij, 12
(U. S.) Amer. Law Eeg. 481, ^ith notes; State v. Curators State
Univ. 57 Mo. 178; St. Louis Co. Ct. v. Griswold, 58 Mo. 175; Liv-
ingston Co. v. Darlington, 101 U. S. 407.
In Cooley, Const. Lim. the subject is f uUy discussed, cases reviewed,
and conclusions stated. Page 264 et seq.
Demurrers overruled.
In re Letchwoeth and others, Bankrnpts.
(DùPrîet OouH, N. D. New York. March, 1884.)
Bakkkttptct — Benbwal Note Ezecctbd aftbr Bankrdptcy.
Where a party previous to becoraing a bankrupt was liable on a bond, by the
terms of which he became a continuing guarantor of notes discounted by a
certain bank for a company of which he was the président, and at the time of
liis bankniptcy the bank held a note so discounted, indorsed by him, the fact
that a renewal note was given af ter the âling of his pétition, will not prevent
the debt from being proved as a claim against his estate.
In Bankruptcy.
Charles F. Durston, for assignes.
Théo. M. Pomeroy, for creditors.
CoxE, J. At the time of the commencement of the proceedings in
bankruptcy herein, William H. Seward, Jr., & Co., bankers, held thé
bond of the above-named bankrupt, by the terms of which he became
a continuing gùarantor for the payment of any notes which the said
firm might discount, for a manufacturing company of which hé was
président, Demand and notice of non-payment wôre waived. When
the pétition was filed the manufacturing company was indebted to
Seward & Co. in the sum of $2,500, for which they held the com-
pany 's note indorsed by the bankrupt. This note was renewed froim
874 FEDERAL EEPOETEB.
time to time, the last renewal being after the adjucation înbanferuptcy.
The assignée insista that for this reason the debt is not provable. It
is thought, however, that under the peculiar phraseology of the bond
and in view of the obligation there created, it would be unjust to
treat the liability of the bankrupt as that of an indorser simply. At
the time of the bankruptcy he was clearly liable on the bond in the
event of the failure of the makers of the note to pay. True, bis lia-
bility had nôt then become absolute, but the debt existed and the
obligation was created before the pétition was filed. Legally and
equitably the esta te is bound by bis contract.
The report of the register is confirmed and the proof permitted to
remain ou file.
In re MbbbeiiL and others, Bankrupts.
{District Court, JT. ET. New York. March, 1884.)
BAHKKtiPTCT — Dkbts Contraoted bt BànkKupt apter I^rocbbdtkos ComitEnced.
A debt contracted by a baukrupt subsequently to the commencement of pro-
ceedings against him cannot be proved in bankruptcy.
This is an appeal from a décision of the register sustaining certain
proofs of debt. The pétition in bankruptcy was filed November 13,
1873. On the twenty-sixth of the same month the bankrupts con-
traoted the indebtedness in question. The adjudication was dated
February 27, 187é. The proofs, of debt were made February 13,
1875. The creditors contend that their proofs should stand, for the
reason that the indebtedness upon which they are founded was due
and payable at the time of the adjudication. The assignée insists
that they should be expunged becaijse the indebtedness was contracted
subsequently ta the proceedings in bankruptcy.
Gharles F. Durston; for assignée.
Théodore M. Pomeroy, for creditors.
CoxE, J. Section 5067 of the Eevised Statutes provides: "That ail
debts due and payable from the bankrupt at the time of the com-
mencement of the proceedings in bankruptcy * * * may be
proved against the estate of the bankrupt." The proceedings are
coinûienced (section 4991) when the pétition is filed. Thèse provis-
ions were in force at the time the proofs in this matter were presented
to the register. The indebtedness upon whiph the proofs are founded
was not contracted flntil 13 days after the proceedings were com-
menced. The ppnclusion fcjlovvs, therefore, that the proofs should not
be permitted to stand. Even before the Eevised Statutes, and before
the substitution of the words "commencement of procepdings in bank-
ruptcy" for the words "adjudication of bankruptcy" in section 19 of
THE ALiNB. 875
the bankrupt law, the weight of authority favo:èed a construction Km»
iting the proof of debts to those existing at the time of filing the
pétition.
The proofs should be expunged.
-' The Aline.*
{Dùlrict Court, E. D. New York. December SI, 1883.)
1. SHiPpmo — Delivery — Pekishablb Cargo — Dischabob m Feeezinb
Wbatheb — "ACT OF QOD."
A steamship brought a consignment of oranges to New York, where she ar-
rivée! on December 29th. The weather was so cold as to render it impossib-e
to land oranges without freezing them, axid continued below zéro for severàl
days. The oranges were landed in spite of the consignfe's objection, and their
value was for the most part destroyed. Ileld, that the act wbich destroyed the
fruit was not the "act of God," but of man, in discharging the oranges at an
unsuitable time.
2. Samk — Exceptions ns Bill of Ladino — Vessbi. Rbadt to Dibcharoe.
A vessel is not " ready to discharge," within the meaning of a provision iii
the bill of lading that ail goods are "to be taken frofn along-side immediately
the vessel is ready to discharge," whea it is impossible for hét to discharge
without destroying the cargo. ■
3. Samb — "Efpbct op Cuuatb."
" EfEect of climate," uaed ia a bill of lading, does not apply to the eflect of
a temporary frost.
4. Samb— Négligence.
Where it was proved that there was no necesalty to land the oranges at
that time, either because other consignées had demanded their cargo, which
could not be separated from the libelant's, or because of the engagements of the
vessel, it was held to ))e négligence on the part of the vessel to discharge at
that time, and a decree was ordcred in favor of the libelant.
In Admiralty.
Jas. K. ïlill, Wing é Shoudy, (B. D. Benedict, of counsel,) for li-
belant.
McDaniel, Wheeler é Souther, for claimants,
Benediot, J. Tbis action is brought to recover the value of a con-
signment of oranges shipped on board the steamship Aline, in Ja-
maica, to be delivered at New York. There la no snbstantial dis-
pute in regard to the material facts. The oranges were shipped in
good order, and arrived in New York in like order. The day on which
the steamer arrived at New York, being Wednesday, December 29th,
was so cold as to render it impossible to land oranges .without freez-
ing them. The weather continued cold, indeed below zéro, until the
foUowing Monday. The steamer commenced to land oranges on the
day of her arrivai, and on that and the foUowing Thursday twid Fri-
day landed the whole consignment. The necessary conséquence was
' Reported ^y R. D. & Wyllys Benedict, of the New York bar.
876 FKDESAIi BEPOBTEB.
that tbe libelant's oranges were frozen, and their value for the most
part destroyed. Objection was made by the libelant to the landing
of the oranges beeause of the unsuitable weather, and he now brings
this action to recover his loss.
It is conceded in behalf of the steam-ship that her défense, if she
bas any, rests upon the exceptions mentioned in the bill of lading.
One of the exceptions relied on is that of damage caused by "act of
God." But the act which destroyed this fruit was not the act of
God, but of man, in discharging the oranges at an unsuitable time.
Again, it is contended in behalf of the steamer that the bill of lad-
ing makes spécial provision for the landing of thèse oranges when
they were landed, beeause it says, "ail goods to be taken from along-
side immediately the vessel is ready to discharge." But this pro-
vision cannot relieve the steamer, for she was not "ready to dis-
charge," within the meaning of this provision, when it was impossi-
ble for her to discharge without destroying the cargo. Eeady to
discharge means ready to make a proper discharge. And a discharge
pf oranges when the weather is sp cold as to freeze tliem before they
eau be removed from the wharf is not a proper discharge.
Next, it is contended that the steamer is freed from liability by the
provision of the bill of lading, which déclares that the ship shall not
be liable for any injury to the goods occasioned by "* * * effect
of climate or beat of holds." But it would, as it seems ter me, be
straining language to consider the word "climate, "used in the bill of
lading, as intended to apply to a temporary frost such as existed
when the steamer arrived. Moreover, in my opinion, négligence is
shown, if it be proved, as I think it has been proved, that there was
no neeessity to land the libelant's oranges at the time when they were
landed. The olaimants insist that the steamer was compelled to land
the oranges when she did, beeause she was a gênerai ship, and other
consignées of oranges had demanded the immédiate landing of their
fruit, from which the libelant's fruit could not be separated in the
ship. If such a demand on the part of other consignées of cargo
can be said to hâve been proved, it created no duty on the part of
the carrier , to discharge immediately, when such. discharge would
necessarily involve the destruction of cargo belonging to others. Such
a demand, to be effective, must be reaSonable, It was unreasonable
on the part of consignées of any cargo to ask the steamer to destroy
the libelant's cargo in ôrder to make immédiate delivery of theirs.
'Nor wàs Ihérè jany neeessity for the immédiate discharge of thèse or-
anges arising'out of the engagements of the steatn-ship. Thé ques-
tion whéthera steamer running' in a regular Une, and béing under
obligation to sail on an advertised day, has the right to discharge in-
ward carg^'.regardless of results, when the discharge bèeomes nec-
essary to èiïàble hër to sâil On haï appointed day, dôës not arise herô.
For hôrelt is'shPwn thiàt the steamer did not sail on her appointed
day, but remained over a day, merely for the sake of getting in more
THE GEISBB. 877
cargo, and it also appears that there was time before she sailed to
bave landed ail tbe oranges in suitable weatber and taken in ail tbe
outward cargo tbat she bad to take. In tbis instance, therefore,
tbere was no necessity to discbarge the oranges wben sbe did, to en-
able tbe steam-sbip to keep her appointment. Tbe oranges in ques-
tion were sbipped under two bills of lading, differing from eacb otber
in some particulars, but, in the view I bave taken of the case, they
are alike in légal effeet, so far as regards tbe libelant's demand, and
under any aspect in whicb I bave been able to consider them, tbey
do not relieve tbe steam-sbip from responsibility to tbe libelant for
tbe destruction of bis fruit. Tbere must therefore be a decree in
favor of tbe libelant. Tbe amount of bis damages \rill be ascertained
by a référence.
Let a decree be entered accordingly.
The Geiseb.'
{District Court, E. D. New York. March 4, 1884.)
Damage TO Cabqoby Heat prom Stbam-Pipbb— BiiiL op Ladiko — Consignee'b
RiGHT OF Action— Adtancbs.
Wherecabbageswere stowed in the between-decks of a steam-ship, and were
injured by heat from steam-pipes placed around the room where the cabbages
■were, for the purpose of warming the rootn when used, as it was intended, for
steerage passengers, and it appeared that, the pipes being new and in some
places obstructed, extra steam was put on in them to keep the chart-room
warm, held, that the vessel was négligent and liable to the shipper for the dam-
age done; that, though the shipper had expressed himself satlsfied to hâve
the cabbages stowed as they were, he could not be supposed to hâve assentéd
to the pipes being unduly heatedas they were ; that the fact that the consignées
who Bued on the bill of lading had aiterwards been paid their advances, did
not destrov their right of action upon the contract.
lù Admiralty. Action on bill of lading by consignée of cargo,,
Clarence Cary, {Alex. Cameron, Qo\iinseil,)iç>T\i\>&\a!a.ii.
Jas. K. Hill, Wing é Shoudy, ÎQiêlaimknts.
Bbnediot, J. Tbis action is to recover for non-delivery in good
order of a consignment of cabbages shipped in Copenbagen, on board
tbe steam-ship Geiser, to be transported therein to the port of New
York. Tbe cabbages were stowed in tbe between-decks, and upon
their arrivai in New York a large portion of them were decayed, be-
ing tben, according to tbe witnesses, about tbe consistenoy of soup.
Tbis condition of the cabbages was not owing to their condition wben
shipped. Tben they were hard and sound. Nor was it owing to an
unusually severe voyage. Quantities of cabbages in varions vessels
bave endured a voyage of equal severity without decay or in jury.
1 Reported by PI, D. & Wyllys Benedict, of the New York bar.
S.78 FEDBBAL ïiEPOBTEB.
What destroyed the eabbages in thîs instance was beat developed in
eteam-heating pipes whioh were placed around the room, in which the
cabbages were stowed, for the purpose of warming the place when used,
as it was intended to be used, for transporting steerage passengers.
On this voyage thèse pipes were kept nnduly heated, whereby the
place was kept hot. I incline to the opinion that it was négligence
on the part of the ship to hâve any steam in thèse pipes so long as
the cabbages were stowed near tbere; but, however that may be, cer-
tainly it was négligence to beat the pipes as the proof shows they
were heated on this occasion, The fact is that the steam-pipes of
the ship, being new, were in some places obstructed, and in an effort
,to keep the chart-room warm by putting on extra steam, an extra-
ordinary beat was developed in the pipes where they ran by the cab-
bages. And although the cabbages were nearly cooked by thèse
pipes, and the ship filled with the odor, the présence of extraordinary
beat in the pipes does not seem to bave been discovered until the ar-
rivai of the vessel in New York. Ordinary diligence would bave dis-
closed the fact that in the effort to keep the chart-room warm the
pipes running by the cabbages were being unduly heated; and, under
the circumstances, it was négligence to apply great beat to the cab-
bages, for which the ship is responsible.
Tbere is nothing in the point that the shipper expressed himself
satisfied to bave the cabbages stowed as they were. He had, as I
tbink, the right to suppose that the pipes would not be heated at ail,
so long as the room was used to stow cabbages. At any rate he can-
not be eupposed to bave assented to the pipes being unduly heated as
thèse pipes were.
The right of the libelants to maintain their action bas not been
successfully disputed. The contract sued on was made with them.
The cabbages were consigned to them, and they had at that time an
interest in them to the extent of their advances. The fact that since
the contract was made they hâve been paid their advances does not
destroy their right of action upon the contract made with them.
There must be a decree for the libelants, with an order of référence
to ascertain the amount of the loss.
THB AMBBtOAN JUâliS. 879
l'HE American Eagle.
{^District Govrt, N. D, lllinoi». March 3, 1884.)
Makitimb Lien— AssmNMENT of Debt. ,
A maritime lien passes lo an assignée of the debt.
In Admiralty.
W. G. Beale, for libelant.
Schuyler de Kremer, for respondent.
Blodgbtt, J. This case cornes before me at this time upon excep-
tions to the libel. The libel is âled bj the assignée of the material-
man who furnished the materials for repairing the tag, and who has
assigned his claim to the libelant, who now seeks to enîorce the lien
of the material-man upon the tug. The exception to the libel is
taken on the ground that the lien of the material-man does not ac-
company the claim into the haiids of an assignée. It is conceded,
for the purposes of this case, that the person who originally furnished
the material had a statutory lien which he could hâve enforced in
admiralty ; but it is insisted that the transfer of the debt waived
the lien, or, at least, that it does not inure to the benefit of the as-
signée to whom the debt is transferred. There is no doubt some
seemîng authority in support of the libelant's exception, but Ithink
the more reliable and better considered cases are in favor pî support-
ing the lien in behalf of the assignée, or giving him ail the security
which the original créditer had. In the case of The Sarah J. Weed,
2 Low. 555, this question is exhaustively discussed, and thé author-
jties considered and analyzed by Judge Lowell, who cornes to the
conclusion that ail the rights of the original creditor come to the as-
signée; that the lien is a part of the indebtedness and goes with it
into the hands ôf whoever the Original créditer shallassign it to.
After discussing the authorities, the judge says:
"The convincing reason is that given by Judge "Ware in the case cited,
that the debtor cànnot be injured by an assigninent, while the creditor will
lose part of the beneQt of his security if he cannot assign it."
The conclusion of this learned- judge seems to me so satisfactory
upon the question that I am content to accept his reasons without»
adding any of my own.
The exceptions to the litôl are overruledi &hd the report of tîle
commissioner confirmed.
880 VEDBBAIi BUFOBTEB.
Bdehs r. Thb Spain.*
{District Oowf, E. D. New York. March 14, 1884.)
CoixiBioN m Slip — Canal-Boat and Pbopbm-bb— Contbadictort Evidence.
A canal-boat, lying in the same siip witb a steam-ship, fouled the screw of
the steam-ship and received injuries which caused lier to sink. On the part
of the canal-boat it was allégea that the accident was due to the screw being
put in motion before the steam-ship was unmoored, which created a current.
The steam-ship denied that the screw had been put in motion, and claimed that
the canal-boat had drif ted with the tide against the screw. Held, the testimony
being contradictory, that the case did nol présent such a prépondérance of év-
idence in favor of the libelant as to allow it to be held that he had proven his
case, and the libel was dismissed, without costs.
In Admiralty.
J. A. Hyland, for libelant.
. John Chetwood, for claimants.
Benediot, J. The libelant's canal-boat, lying in the same slip
•with the steam-ship Spain, on the morning on which the steamer
sailed, in May, 1882, fouled the screw of the steamer, and there re-
ceived injuries which caused her to sink. The charge of the libelant
is that before the steam-ship was unmoored her screw was put in
motion in the slip, without notice or warning to the boats in the slip,
and thereby a current created which f orced the libelant's boat upon
the screw while in motion. On the part of the steam-ship, it is
averred that the screw of the steam-ship was not moved prior to the
accident, but that the canal-boat, through négligence, drifted by the
tide upon the screw, the same hot being in motion, where she was in-
jured by coming in contact with the screw at rest, and not by a blow
from the screw in motion. The testimony upon the point of the in-
quiry, namely, whether the screw of the steam-ship was in motion on
the morning in question before the canal-boat got foui of the screw,
contains contradictions that I hâve not been able to reconcile. I am
satisfied that there is misstatement or concealment on one side or the
other, but the case does not présent such a prépondérance of évidence
in favor of the libelant's acoount of the accident as will permit me to
hold that he bas proven his case. I must therefore dismiss the libel.
I give no costs.
> Reported by R. B. & Wyllys Benedict, of the New Tork har
MAC NAUGIîrON V. SOUTH PAC. C. B. 00. 883
MacNauohton V. South Pao. C. E. Oo.
(CHreuit Court, D. California. March 24, 1884)
1. REMOvAii op Causes from Statb Court— Application must Specipt whbh
Qhound Existed.
In order to show jurisdiction in a fcderal court over a cause removed thither
from a state court on ihe ground of the parties being résidents of différent
States, it must appear in the application for removal that this ground subsisted
at the time the suit was instituted in the state court.
2. Samb — Amendment not a Right.
The amending of an application so as to shoVr iuriadiction is a matter within
the discrétion of the court, and cannot be claimed by a party litigant as a right.
3. Samb — "Sbbsiom" Equivalent to "Teem" in Contemplation op Act op
congkess.
The Word " session " in the présent constitution of California, relative to the
sittings of courts, is "term" within the contemplation of the act of congress.
Motion to Eemand.
H. N. Clément, for plaintiff,
Gordon Blanding, for défendant.
Sawyer, J. This action was commenced in the Fourth district
court of the state of California on August 1, 1879. Défendant de-
murred August 22, 1879, and the demurrer was overruled. Défend-
ant having answered, plaintiff demurred to that part of the answer
setting up new matter as a défense, October 2, 1879. The new con-
stitution of California of 1879 having in the mean time taken effect,
the case went into the superior court, as .suecessor to the state dis-
trict court, and on January 23, 1880, was assigned to department
No. 7 of the superior court. On March 22, 1880, the demurrer to
the answer was sustained, with leave to amend. An amended an-
swer was filed April 1, 1880, which, under the Code of Civil Procéd-
ure, put the case at issue, and it was ready for trial. On January
21, 1884, the défendant filed a pétition to remove the case to the
United States circuit court, on the ground that the plaintiff is a citizen
of Missouri, and the défendant a citizen of California. The pétition
allèges that "there is in this action a controversy between citizens of
différent states, to-wit, a controversy between your petitioner, the de-
fendant herein, — which said défendant was at the time of the com-
mencement of this action, ever since bas been, and now is, a corpo-
ration duly organized aud existing under and by virtue of the laws of
the state of California, and which said défendant is a citizen of the
said state of California, — and the ^iainti^ herein, who is a citizen of
the state of Missouri." The proper bond was filed, and a copy of
the record obtained by petitioner and filed in the circuit court, Febru-
ary 7, 1884, the state court having made no order and taken no ac-
tion upon the pétition. The plaintiff moved to remand the case to
the state court, on the grounds: (1) That it is not shown by the pé-
tition that plaintiff was a citizen of Missouri at the time of the com-
v.l9,no.l3— 56
882 TEDERAIi BEPOETEB.
mencement of this suit ; (2) that it appears from the record that
the application was not made "before or at the first term at which it
could hâve been tried," or within the time required by law; (3)
that défendant bas not used due diligence in making application for
removal. ïhe suprême court has repeatedly held that on a removal
the record musfc show that the eitizenship of the parties of différent
states must exist both at the time of the commencement of the suit
and at the time of the application for removal. In this case it does
not appear but that both plaintiiï and défendant were citizens of
California when the suit was commenced. It simply shows that
plaintiff was a citizen of Missouri at the time of the application for
removal, which is four years and nearly ten months after the com-
mencement of the suit. Clearly, the record does not show jurisdic-
tion in this court, or a proper case for removal on the ground of eiti-
zenship, and the case must be remanded on that ground.
The présent constitution of California, which went into effect on
January 1, 1880, five months after this suit was commenced, pro-
viJes that the superior court "shall be always open, (légal holidays
and non-judicial days excepted);" and, the Code of Civil Procédure,
isection 73,) adapted to the new constitution, provides that "the su-
perior courts shall always be open, (légal holidays and non-judicial
days excepted,) and they shall hold their sessions at the county seats
of . the seyeral counties,- or cities and counties, respectively. They
shall hold regular sessions, commencing on the firat Mondays of Janu-
ary, April, July, and October, and spécial sessions at such other
times as may be prescribed by the judge or judges thereof : provided,
that in the city and county of San Francisco the presiding judge
shall prescribe the times of holding such spécial sessions." Under
thèse provisions of the Code and Constitution it-is insisted by défend-
ant that there are no terms of court iu California, and that the pro-
vision of the act of congress of 1875, that the application for removal
must be made "before or at the term at which said cause could be first
tried," oan bave no application in said state; that a removal from
any state court of California, therefore, is in tiCie if the application
be made at any time before the trial, no matter how long it may hâve
been ready, or in a condition for trial. I am unable to take this view.
Congress undoiibtedly intended to require prompt action, and to pro-
vide that unless the party avails himself of the right promptly, after
a reasonable opportunity to try the case has been had, his right to
remove shall be eut olî or waived. In this district it has always
been held by the circuit court that the respective^ separate gênerai
sessions of the courts to be held four times in each year, provided for
by the statutes, are "terms," within the reason and meaning of the
act of congress. There is no magie in the word "terms," or in the
words, the courts "shall always be open." Courts of chancery, and
8ome other courts, are always open for many purposes, though not
always in session ; yet they bave regularly definei terms. The regu-
MAC NAOGHTON V. SOUTH PAO. 0. E. 00. 883
lar sessions of the siiperior courts, commencing at regularly appoînted
periods, are substantially terms. They are terms, at least, in my
judgment, within the reason and meaning of the act of congress, and
this construction will be adhered to in this circuit, until overruled by
the suprême court. Thé cause must be remanded on this ground,
also. In some of the counties, by rule of court, new calendars are
made up for every month, and the calendar is called anew and trials
thereon begun on the first Monday in each month. It is by no means
certain that the spécial sessions provided for in the act, and in those
cases where monthly calendars are provided for by rule, such spécial
and monthly sessions would not, also, be held to be terms, within the
meaning of the act of congress. However that may be, the regular
sessions must certainly be regarded as terms for the purpose of the
removal of causes.
At the argument of the motion to remand, the court declared that
the pétition for removal was insufficient, for the reason that it did
not show that plaintif! was a citizen of a state other than the state
of California at the time of the commencement of the sait, where-
upon the counsel for petitioner stated that this jurisdictional fact
existed, and asked. leave to amend the pétition so as to properly
state the facts. Several cases from the circuit courts were cited,
wherein it was held that the circuit court had authority to allow the
substitution of a new bond, to cure defects in the bond filed in the
state court, and also to allow the pétition to be amended so as to
show the proper jurisdictional facts, where not shown by the record
brought from the state court and filed in the circuit court. The filin g
of a new bond is merely to correct an irregularity in the proceedings.
It is not a jurisdictional fact in this court. Generally the main ob-
l'ect of a bond has been accomplished by the filing of the record in
the circuit court béfore the motion to remand has been made. I
hâve heretofore thought it proper to allow an imperfect bond to be
corrected in the circuit court, or any other matter of mère irregu-
larity, not afïecting the junsdietion of the court. But, although
aware that some circuit judges hâve adopted a différent practice, I
hâve never in this circuit allowed a pétition which did not show the
jurisdictional facts to be amended in such way as to show jurisdiction.
I am not prepared to say that the court has not power to allow such
an amendment to be made; but if the power be conceded, it is not à
matter which the party can demand as a légal right, but only a mat-
ter for the exercise of a sound discrétion by the court. It has been
said by some judges that they sàw no reason why an amendment,
showing the jurisdictional facts, should not be allowed to the pétition
in the circuit court, that is not equally applicable to the case of a
bill originally filed in the circuit court, which omit? to properly state
the jurisdictional facts depending upon citizenship or otherwise. In
my judgment, there is a very important distinction, that does not ap-
pear to hâve attracted the attention of the courts in the cases hitherto
884 FEDEBAL EEPOETEB.
reported. Take the présent case for example. The record in the state
court shows a case over which that court has jurisdiction, and it does
not show a proper case for removal, or any case of which this court
tiàB jurisdiction, The suprême court has decided that, whenever the
proceedings in the state court hâve been perfected so as to show upon
the record of that court that the petitioner is entitled to hâve his case
removed, ail jurisdiction of the state court ceases, and ail subséquent
proceedings in the case are illégal and void, even if it has refused to
make any orderfor the removal; and that no order of removal isnec-
essary. The jurisdiction of the state court is suspended, or super-
seded, the moment the proceedings showing a proper case for removal
hâve been perfected. But the suprême court has aiso held the cor-
relative proposition to be true, that the state court is not bound to re-
uounce its jurisdiction, or let go its hold upon the case, until its rec-
ord shows upon its face a proper case for removal, and that the juris-
diction of the United States court has attached; that the state court
is authorized to proceed until its own record shows that it has lost
jurisdiction, and the jurisdiction of the circuit court has attached.
Now, in this case, the record of the state court shows jurisdiction in
that court, and does not show jurisdiction in this court. The state
court is, therefore, fully authorized to proceed to a final judgment,
which will be valid. The record in this court does not show juris-
diction in this court, but if the pétition be amended hère, as desired,
jurisdiction will be shown by the record in this court. Its jurisdic-
tion appearing on the record, it can, also, regularly proceed to final
judgment. Thus each court, proceeding on its own record, has juris-
diction, and the resuit may be, two final valid judgments, entirely
différent, or even opposite judgments, with no error in the record
upon which either judgment or decree could be reversed on writ of
error or appeal. That state courts may proceed when its record
does not show a valid removal is évident from the fact that in a num-
ber of cases they hâve proceeded even af ter a valid removal ; and their
judgments in such cases hâve been reversed on that ground by the
suprême court. In my judgment, in such cases as this the circuit
court, in the exercise of a sound discrétion, should not permit a case
to be thus embarrassed by an amendment to the pétition, so as to
show a proper case for removal, and jurisdiction in the circuit court,
when thèse conditions are not shown in the record of the state court.
The law as to averments of citizenship has been laid down so often,
and been 80 long settled, that those who fail to make the proper al-
légations are entitled to little indulgence on acoount of the oversight.
Although there is no ground to suspect anything of the kind in this
case, there is reason tobelieve that the right to remove is sometimes
exercised, not forthe purposes of justice, but just the opposite. — to ob-
tain delay, and to. hinder and obstruct the administration of justice
by the enormous expense and inconvenience of litigating fivé or six
hundred miles, more or less, from home. Ini my judgment, in this
JCDOE V. ANDBBSOK. S85
Circuit, at least, a pretty strict rule should be adhered to, in requir-
ing a clear case for reinoval to be made out in the first instance in
the court where the suit is brought; and that the court to whioh a
removal is made should not be lax in allowing defective records to be
made good by amendment after removal. This is the principle here-
tofore acted upon in this court.
For the reasons indicated, leave to amend the pétition so as to
show jurisdiction is denied, and the cause remauded to the state
court, with costs.
JtJDGB and others v. Andbeson.
{Circuit Court, D. Minnesota. April 24, 1884.
1. Pbactice in Cases Removbd pkom Statb Courts— WHaN Jubisdictios At-
taches.
The junsdiction of the United States circuit court attaches in a case remov-
able uuder the statuts at the time when the pétition and bond is flled ia the
State court.
2. Same— Wheiî Issue may be Joinbd.
If the cause commenced in the state court 30 days before the next session of
the circuit court, aad is not at issue when removed, the rule of the United
States circuit court in this district gives until the flfth day of the term to malie
up the issue, and the case then stands for trial.
On April 9, 1884, the défendant filed a pétition and bond for re-
moval of the above-entitled cause to the circuit court of the United
States for the district of Minnesota. The pétition is in compliance
with the statute for the removal of causes from the state to the fédéral
court, and is accompanied by the bond required. An order was made
for the removal by the state court, and on April 14th ihQ platntiffs
procured and filed a transoript of the record of the cause in the
clerk's office of the United States circuit court for the district of Min-
nesota. The term of that court as fixed by law commenced on the
second Monday in December, A. D. 1883, and was still continuing
when the transcript of the record was filed. The circuit court bas a
rule that when a cause is commenced in the state court, 30 days be-
fore the next term of th.e United States circuit court in the district
convenes, if issue is not joined in the state.coUrt at.thétiçie of the
removal, the cau.se shall stand for trial, and the issues shall be joined
therein within five days from the first day of the said term. The
défendant, by counsel, appears specially under protest, and objects
to the jurisdiction of the court to proceed in the action and grant
judgment for default according to the state statute, unless an answer
is filed within a time to be fixed by the court.
Frackelton é Careins, for plaintifïs.
Warner é Stevens, for défendant.
886 FEDESAL BEF0BTE5.
Nelson, J. It bas been decided by the suprême court of the United
States that the jurisdiction of the United States circuit court attaches
in a case removable, under the statute, at the time when the pétition
and bond is filed in the state court. The transfer of jurisdiction is then
complète in advance of the entry of a transcript of the record in the
clerk's office of the circuit court. Duncan v. Gegan, 101 U. S. 812;
Railroad Co. y. Koontz, lOi U. S. 15; Steam-ship Co. v. Tugman, 106
U. S. 122 ; S. G. 1 Sup. Gt. Kep. 58; St. Paul é G. Ry. Co. v. McLean,
2 Sup. Gt. Rep. 499. The circuit court does not take the suit unless
its jurisdiction appears of record; and if, before the statutory time
when the removing party is required to enter a copy of the record
and his appearance in the United States circuit court, either party
procures a transcript and files it in the clerk's office, the jurisdiction
then appears of record, and ail proceedings necessary to prépare the
cause for trial at the next session of the court can be taken by either
party. The court then bas jurisdiction of the cause as if it had been
commenced there by original process.
In the case of Kern v. Huideknper, 103 U. S. 487, the plaintifif ap-
plied for removal July 6th, and filed the transcript in the clerk's of-
fice of the United States circuit court on July 27th. The term of that
court prescribed by law began on July 2d, before the pétition for re-
moval was filed in the state court. On November 14th, the July term
still continuing, the circuit court made an order approving the filing
of the record. The suprême court held that the filing of the record
July 27th gave the circuit court the rigbt to proceed with the cause ;
that is, as I understand the décision, to go on and perfect the issues,
if necessary, and grant provisional remédies, but the removing party
is not required to try the issues until the term next ensuing that of
the state court when the cause vas removed.
The rule cited by counsel does not prevent the court from enter-
taining motions to make up the issues when applied to by the par-
ties. If the cause commenced in the state court 80 days before the
next session of the circuit court, and is not at issue when removed,
this rule gives until the fifth day of the term to make up the issues,
and the cause then stands for trial. It applies to ail cases removed
and docketed on the first day of the term, where neither party had
previously applied to the court to proceed in the case.
The défendant will file his answer within five days from this day,
to-wit, April 24, 1884; and it is so ordered.
MULVILLB V. ADAMS. 887
MuLviLLB, Trustée, v. Adams and others.
{Circuit Court, N. D. New York. Mârch 4, 1884.)
1. FlRE, IN80RANCE — DESCRIPTION OP PREMISffiS — RbSPONSIBILITT OF THB AS-
SORED FOB WAimANïIBS AND RbPRESBNTATIOKB.
Where, in an applicatioa for iusurance wheruby the assured agrées that the
application is a just, fuU, and true exposition of ail the facts and circumstances
in regard to the condition, situation, value, and risk of the property, so far as
the same are known to him and are material to the risk, it is immaterial
whether the statements are regarded as warranty or merely as représentations
of the truth of the stateraent, because the applicant only assumes responsibll-
ity for their truth so far as the facts are known to him and are material to his
risk.
2. Bame — Conditions Working Fobfbiturb. j
Conditions tliat work a forfeiture are not to "be extended by construction.
Being put into the policy for the beneflt of the insuier, they will be construed
most liberally for the assured.
B. Samb— Materialitï a Question of Fact.
The materiality of a représentation is a question of fact. The test is the
probable effect of the représentation upon the judgtnent of the insurer.
In Equity.
Wm. W. Badger, for complainant.
Wetmore & Jenner, for Refendants.
Wallaoe, J. The complainant, as trustée for 21 insurance com-
panies that had issued policies of fire insurance to the dafendant
Adams, took an assignment of a bond and mortgage ëxeeuted by
Adams to one Dodge, and has filed this bill to foreclose the mortgage
and obtain a decree against Adams on the bond. The property of
Adams insured by said policies had been burned, and suits had been
brought, some by Adams and some by Dodge, against the several
companies to recover the loss, when it vfas arranged between ail the
parties that Dodge should assign the bond ahd mortgage to thé com-
plainant, and the pending suits should be discontinued, The assign-
ment contained the following clause:
"The said Mulville, in considération of rec.eiving said assignment and the
discontinuance of siich actions, agrées to and with the said Dodge that he will
within thirty days commence a suit to foreclose the said mortgage, to which
suit the said Adams shall be made a party, and a claim made against him for
any deficiency, and that if any of the said policies of insurance were valid as
to the interest of said Adams therein at the time of the flre, May 15, 1877,
that than snch of tliem as were then valid shall be deemed a good and sufiB-
cient défense to the extent that such policies may hâve been valid."
The property insured consisted of "a saw-mill building, a stone boiler-
house attached thereto, and a brick chimney standing detached, ail
known as the Clinton Mills, together with the engines, boilers, ma-
chinery, tools, and ail fixtures and appurtenances contained in the
buildings." The total insurance was $20,500, of which $5,473.50
was upon the buildings and $15,026.50 was upon the personal prop-
'srty and fixtures.
888 FEDEBAL BEPORTEB.
The bill allèges generally that the several insurance policies issued
by the companies to Adams were invalid and void on account of
misrepresentations, concealment, and breach of warranty on the gart
of Adams. The spécifie allégations are that the insurance was made
and issued upon a survey and written description of the property, and
that by the terms of the policies sach survey and description were to
be taken and deemed a part of such policy and a warranty on the
part of the assured ; and that by other conditions of the policies any
false représentations by the assured of the condition, situation, or
occupancy of the property, any omission to make known every fact
material to the risk, any overvaluation, or any misrepresentation
whatever, either in a written application or otherwise, should render
the policies void. The bill further allèges that in the said survey and
description of the premises, among other things, the insured repre-
sented the premises described in said policies as being disconnected
and detached from a building known and described as a lath and
shingle mill; and further represented that there was no planer or
planing machine on said premises, nor in the said adjoining building ;
that there was no woodland or woods within one quarter of a mile of
said premises; and that there were no other buildings than those set
forth in the application within 150 feet of the buildings insured, — ail
of which représentations were false. The bill also allèges that the
insured represented and warranted that there was no incumbrance or
mortgage on the property insured, whereas there was in fact at the
time of the application for insurance a mortgage thereon in favor of
one Dodge. By an amendment to the bill it is alleged that by the
terms of the several policies it was conditioned that if the property cov-
ered by the insurance should be sold, conveyed, or transferred, the
policies should become void, and that they did become void because of
a conveyance made by Adams to bis son af ter procuring the insurance
and before the fire.
The case turns upon the validity of the policies as affected by the
misrepresentations and breaches thus set forth. If none of them are
invalid because of thèse misrepresentations and breaches, they were
valid at the time of the fire. The bill contains further allégations in-
tended to show that a recovery could not bave been had against the
insurance companies upon the policies because of breaches of condi-
tions which took place after the loss, such as failure of the assured
to comply with the conditions respecting proofs of loss, failure to
furnish oertified copies of invoices of property destroyed, refusai of
the assured to arbitrate, and ovetvaluation and false swearing in the
proofs of loss. Thèse allégations must be deemed irrelevant to the
real cohtroversy, because by the agreement under which the com-
plainant acquired the mortgage the only question open to contestation
is whether the policies were valid at the time of the fire. If they
were then valid, they are a good défense to the mortgage. The lan-
guage of the agreement does not permit the coraplainant to contest
UULVILLB V. ADAMS. 889
generally the question whether the plaintiffs ia the pending suits
against the Insurance companies were entitled to recover upon the
policies.
The validity of the policies has been assailed in the arguments of
counsel upon several grounds, whioh must be disregarded because the
allégations of the bill do not présent them. No overvaluation is al-
leged except in the proofs of loss, and no concealment, as distinct
f rom misrepresentation, is alleged. The controversy is therefore nar-
rowed to the spécifie issues of misrepresentation or breaoh of warranty
as follows : That the insured premises were disconnected from the
shingle mill; that there was no planing- machine in the saw-mill or
shingle-mill ; that there was no woods or woodlanda within one quar-
ter of a mile ; that there were no other buildings, except those sbown
in the survey, within 150 feet of the insured premises; that there
was no mortgage to Dodge upon the property ; and whether there was
a breach of condition whereby the policies are void because of the
conveyance of Adams to his son.
There were no oral représentations made by Adams, or in his be-
half , as a basis for the Insurance, The policies were obtained through
one Moies, an insurance broker employed by Adams. Moies applied
to one Woodward, an insurance agent, and produced to him a written
application which had been used by Adams several years before for
obtaining a policy on the same property from the Impérial Fire In-
surance Company. There was a survey or diagram showing the
ground plan of the saw-mill, the shingle-mill, and the chimney, an-
nexed to the application. Woodward was agent for four insurance
companies — the Parmville, the Humboldt, the Safeguard, and the
Eoyal Canadian. He made a synopsis of the Impérial application,
which is spoken of in the proofs as a "digest," annexing to it a copy of
the diagram and a description of the property to be insured. This was
shown by him to the officers or agents of some of the companies, and
the policies issued by thèse companies were based upon it as the appli-
cation for insurance. Every policy in suit was obtained upon this
"digest," except the policies issued by the companies for which Wood-
ward was agent and those issued by the Marchants Insurance Com-
pany, the St. Louis Insurance Company, and the American Central
Insurance Company. The policies issued by the Farmville, the Hum-
boldt, the Safeguard, the Eoyal Canadian, the Merchants, the St.
Louis, and the American Central Companies were obtained upon the
original or Impérial application.
1. There was no misrepresentation or breach of warranty which
avoids the policies issued upon the basis of the "digest." Every repré-
sentation contained in this application was a warranty by the terms
of the policies, but none of the représentations were untrue. By this
application the assured represented that there was no planing-ma-
chine in the saw-mill building and no woodland within a quarter of a
mile. Both of thèse représentations were true. He did not represent,
890 fBDEEAL EEPOETEB.
however, that the Baw-mill was disconnected from the shingle-mill,
or thsît there were no other buildings within 150 feet of the property
to be insured. The diagram purported to give only the ground plan
of the buildings shown upon it, The shingle-mill was properly de-
scribed as an "adjoining building."
2. There was no misrepresentation or breach of warranty which
avoids the policies issured upon the basis of the "Impérial survey"
except réspecting the existence of a mortgage upon the property.
This application consisted of a printed blank containing questions to
be answered by the applicant, and an instruction to annex a diagram
with a f ull explanation of the buildings to be insured, and of ail build-
ings within 150 feet. The diagram annexed showed a ground plan
of the saw-mill, boiler-room, lath and shingle mill, the side track of
a railway, and the location of the water which sùpplied the mill. An
important feature of the application consists in an agreement at the
end whereby the applicant covenanted that the application was a just,
full, and true exposition of ail the facts and circumstances in regard
to the condition, situation, value, and risk of the property to be in-
sured, "so far as the same were known to him, and were material to
the risk." This agreement restricts the effect of the représentations
contained in the application. Whether they are treated as a warranty
of their truth or as représentations merely is not material, because,
in either view, the applicant only undertook responsibility for the
truth of the représentations, so far as the facts were known to him
and were material to the risk. Houghton v. Manufrs' Ins. Co. 8
Metc. 114. The application arid the policies are to be read together,
and it is a familiar rule in the interprétation of conditions which
work a forfeiture that they are not to be extended by construction,
and, being inserted for the benefit of the insurer, they are to be lib-
erally construed in favor of the assured. No effect can be given to
the covenant on the part of the applicant at the end of the application,
unless it is construed as restricting his undertaking and holding him
accountable for the accuraey of his statemeuts, so far only as the facts
stated are material to the risk; If every statement and the truth of
every answer were to be treated as material, there would be nothing
upon which the restriction could operate. In this application the
assured represented by his answer to the eighteenth question that
there was no planing-machine upon the premises, but the premises
to which the question and answer refer are the insured premises, not
the adjuncts or adjoining premises. Northwestern Ins. Co. v. Ger-
■inania Ins. Co. 40 Wis. 446 ; Carlin v. Western Assurance Co. 57 Md.
515. There was therefore no misrepresentation.
If the first subdivision of the answer should be regarded as an an-
swer to the first subdivision of the question, it is not responsive. When
a question is not answered it is uotto be inferredthat there was noth-
ing which required an answer, and in such case if the answer is not
responsive or satisfactory the insurer waives a full answer. Higgin<{
MUIiVILIiB V. ADAMS. 891
V. Phœnîx Ins. Co. 74 N. Y. 6 ; Carson v. Jersey City Ins. Co. 43 N. J.
Law, 30 ; Com. v. Hide é Leather Ins. Co. 112 Mass. 136. A référence
to the original application, however, shows that this subdivision of
the answer was intended as a response to the last subdivision of ques-
tion 17. The answer to the thirty-fourth question is to be regarded
as making the diagram an exhibit and description of ail buildings
■within 150 feet of the insured building, and is équivalent, therefore,
to a représentation that ail such buildings were shown upon it. As
it did not disclose the existence of certain buildings within that dis-
tance, the omission would be fatal to the validity of the policies were
it not that the assured only undertook to be responsible for the truth
of his représentations, so far as the représentations were material to
therisk. The materiality of a représentation is a question of fact;
the test is the probable influence of the représentation upon thejudg-
ment of the insurer. The testimony of the experts hère is sufficient
to indicate that the existence of buildings not within 100 feet of the
insured property would not be deemed to increase the risk. The
omission to describe those outside of that distance must, therefore, be
held to be immaterial. This application also contained a représen-
tation that there was no mortgage or incumbrance upon the property
to be insured. This représentation was untrue.
3. Under the allégations of the bill, the only breach of warranty or
misrepresentation concerning incumbranoes or mortgages upon the
insured property is such as arises from the existence of a mortgage
to Dodge. At the time the application was originally prepared, there
was no mortgage on the property, so far as appears by the proofs.
While there is no reason to suppose that Adams intended to misrep-
resent the fact when the policies in suit were obtained, the inadvert-
ent représentation must, of course, be given fuU efifect. The only
policies issued upon this application were those of the Merohants' In-
surance Company, the St. Louis Insurance Company, the American
Central Insurance Company, The Farmville Insurance & Banking
Company, the Humboldt Insurance Company, the Safeguard Fire In-
surance Company, and the Koyal Canadian Insurance Company.
Woodward, who was the agent of four of thèse companies, (the Farm-
ville, the Humboldt, the Safeguard, and the Eoyal Canadian,) knew
of the existence of the mortgage to Dodge at the time the policies
were issued. The policies issued by thèse companies are therefore
not invalidated by reason of its existence. His knowledge is imput-
able to them, and no misrepresentation can be predicated of a fact
of which the insurers were fully cognizant. Ang. Ins. § 324. This
branch of the controversy is thus narrowed to the policies issued by.
the Merchants' Insurance Company, the St. Louis Insurance Com-
pany, and the American Central Insurance Company. The policy
issued by the Merchants' Insurance Company may also be excluded
because the évidence shows that the secretary of that company knew
of the existence of the Dodge mortgage. The loss in that policy was
892 FEDEBAIi BEPOBTEB.
orjgmally made payable to Dodge as mortgagee. The policies of the
St. Louis Insurance Company and the American Central Insurance
Company were obtained through Messrs. Monrose & Melville, the
agents of those companies, and were issued by them upon the faith of
the statements contained in the Impérial application. As to thèse
policies it must be held that the misrepresentation was fatal to the
insurance.
4. The only policies as to which a breach of the condition respect-
ing a sale or conveyance of the property covered by the insurance
can be alleged are those issued by the Franklin Insurance Company
and the German-American Insurance Company, ail the otbers having
been made and delivered after the date of the conveyance by Adams
to his son. The proofs show that while thèse policies were in force,
and previous to the lire, Adams made and acknowledged a conveyance
of the property to his son, and three days afterwards the son made
and acknowledged a conveyance back to the father. The first deed
was put on record shortly after the fire. Both the parties to the con-
veyance testify that it was never delivered, and the father testifies
that he put it on record to prevent judgments which were about to be
entered against him from becoming liens on the property. The the-
ory of the non-delivery of the deed is so inconsistent with the exécution
and delivery of the reconveyance by the son that it should not be re-
garded as true. The act of the son in making a conveyance back, and
of the father in accepting it, was an authentic déclaration by both,
made at a time when neither of them had anj' interest to subserve by
a perversion of the facts, that the former had a title to transfer. Thèse
policies are therefore held to hâve become void. It foUows that none
of the policies are invalid upon the grounds alleged in the bill except
those issued by the Franklin Insurance Company, the German-Ameri-
can Insurance Company, the St. Louis Insurance Company, and the
American Central Insurance Company. The amount due upon the
several policies is not in issue, because the bill does not charge that
the loss was less than the insurance. The proofs, however, show that
it was equal at least to the total insurance. Neither is there any
issue as to the invalidity of Adams' discharge in bankruptcy which is
set up in the answer as a défense to any decree against him upon his
bond. The validity of the discharge is not put in issue by a repli-
cation. Story, Eq. PL § 878. It is needless to say that no facts are
properly in issue unless charged in the bill; that every fact essential
to obtain the relief desired must be alleged ; and that no relief can be
granted for matters not charged, although they may be apparent from
other parts of the pleadings and évidence. Id. § 257.
A decree is directed for the complainant, with a référence to a mas-
ter to ascertain the amount due upon the mortgage. In ascertaining
this the master will apply the insurance moneys due upon ail the
policies, except the four declared void, as a payment upon the mort-
gage at the date of the assignment to complainant.
UNITED STATES V. ACFFUOBDT. 893
United Stateb t). âuffmobdt and another.
{Diitriet Court, S. D. New York. March, 1884.)
î Penaltibs and Forfbitubbs— Moiety Act op Jctne 22, 1874— Praudb on
Revenue.
The moiety act passed June 22, 1874, was deaigned to cover the whole ground
of frauds on the revenue in the entry of imported goods at the custom-house,
embracing tlie punishment of olïenders criminally, as well as indemnity to the
government; and it therefore supersedes, by implication, the différent provis-
ions of sections 2839 and 2864 of the Reviseu Statutes on the samé subject.
2. 8amb— Rkv. St. ^ 2839, 2864.
The absolute forfeiture of goods fraudulently entered, wMch is prescribed by
section 12 of the moiety act, is inconsistent with, and répugnant to, the for-
feiture in the alternative only of either the goods or their value, as prescribed
by sections 2839 and 2864. Under the former, the title of the goods vests in
the United States from the moment -when the fraud is committed, and prevails
against bona flde purchasers before seizure ; undor the latter, the title of the
government vests only from the time of its élection to proceed against the
goods, rather than for their value, and a bona fide sale in the mean time will
pass a good titto against the government. The absolute forfeiture under sec-
tion 12 of the moiety act, and the alternative forfeiture under sections 2839 and
2864, for the same frauds, canuot co-exist ; the alternative forfeiture of value
under those sections is, therefore, within the repealing clause of the moiety
act, which repeala ail acts or parts of acts inconsistent therewith.
3. Sasib — Act of Fbbkuary 18, 187S — Construction — Repbal — Procebdino
AGATN8T GOODS.
The act of February 18, 1875, amending the Revised Statutes, was not designed
as new législation, but only to make the text «f the Revised Statutes express
truly the law as it existed on December 1, 1873. The amendraent of section
2864 by that act is to be read and construed as though it were a part of the
Revised Statutes, as originally enacted, and subject, therefore, to the provisions
of sections 5596 and 5601. Beld, therefore, that thè amendment of section 2864,
by the act of February 18, 1875, does not supersede the moiety act as subséquent
législation. Held, accordingly, that forfeitures of value for fraudaient under-
valuations can no longer be enf orced under sections 2839 and 2864 ; the remedy
is confined to proceedings against the goods under section 12 of the moiety act.
4. Same — Suit in Pbrsonam.
Whether the language of section 2864, prescribing forfeiture of " value "
without saying, like section 2839, of whom to be recovered, is sufflcient to
authorize a" suit in, peraonam, guœre,
The above suit was brought in peraonam to recôver $321,519.29,
the value of a large quantity of silk ribbons imported from Switzer-
land into the port of New York, during the years 1879, 1880, 1881,
and 1882, and entered in the custom-house by the défendants, as it
is alleged, by means of fraudulent undervaluations in the invoices as
to the market value of the goods. The importations and entries are
91 in number. The déclaration allèges that the value of such goods,
by reason oî such fraudulent undervaluations, became forfeited to
the United States under sections 2864 and 2839, Rev. St. None of
the goods were seized, nor were any proceedings ever taken to forfait
the goods.
By the plaintiff's bill of particulars the record shows that the goods
were sent by the manuf acturers in Switzerland to the défendants hère
for sale on commission, none of them being purchased goods. The
894 FEDERAL BBPOBTEE.
cause came on for trial on the thirteenth of February, 1884, before
the district judge and a jury; and after the opening by the plaintiff's
counsel, stating in substance the above matters, the defendant's coun-
sel moved, upon the record and the facts stated in the opening, that
a verdict be directed for the défendant, on the ground that forfeitures
of value under aëction 2864 had been superseded by section 12 of the
act of June 22, 1874, and that since that act the goods only, and not
their value, could be forfeited. After elaborate argument, the court,
on the next morning, granted the motion, upon the grounds stated
in the following opinion :
Elihu Root and John Proctor Clarke, for the United States.
Tremain é Tyler and Charles M. Da Costa, for défendant.
Beovtn, J. The olaim of the plaintiff in this case is founded upon
alleged fraudulent undervaluations of imported goods consigned to
the défendants for sale by the manufaeturers in Europe. Such frauds
fall clèarly within the provisions of section 12 of the act of June 22,
1874, which, for convenience sake, I shall call the moiety act. They
also fall equally clearly within section 1 of the act of March 3, 1863,
and section 2864, Eev. St., if the forfeitures of value provided by
those sections are still in force. The latter prescribe a "forfeiture of
the merchandise, or the value thereof ;" and this suit is based upon
that provision. The moiety act prescribes a forfeiture of the goods
only.
The point raised by the motion does not appear to hâve been pre-
viously considered in any reported case. But few suits for the for-
feiture of the vahce of goods, instituted since the passage of the moiety
act, hâve been brought to trial within this district; and in none of
them do I lind that the attention of the court was called to the point
now raised, namely, that the moiety act, by prescibing fine, imprison-
ment, and the absolute forfeiture of the goods, as the remédies of the
government in cases of fraudulent undervaluation, omitting any for-
feiture of value, bas superseded and repealed section 1 of the act
of March 3, 1863, (section 2864, Eev. St.,) which in similar cases
prescribed only an alternative forfeiture of the goods or the value
thereof.
Section 2839 provides for the forfeiture of merchandise or the
value thereof, "to be recovered of the person making entry," where
the goods are "not invoiced according to the actual cost thereof at
the place of exportation, with the design to évade payment of duty."
This section, taken from section 66 of the act of March 27, 1799,
(1 St. at L^rge, 677,) is applicable only to goods purchased. Alfonso
V. U. S. 2 Story, 421, 429, 432. Where goods are imported into this
country by the manufacturer, the invoice is required to state, not the
actual cost at the place of exportation, but the "true market value
thereof." Sections 2841, 2845, 2854.
The only statute under which a forfeiture of value can be claimed
in cases like the présent, that is, of goods obtained otherwise than
tJNITBD STATES V. ATJFFMOEDT. 895
by purchase, is section 2864, taken from section 1 of the aot of
March 3, 1863, (12 St. at Large, 763.) Thàt section reads as fol-
lows: ,
"If any owner, consignée, or agent of any merchandise shall knowingly
make, or attempt to make, an. entry thereof by means of any false invoice, or
false eertLÛcate of a consul, vice consul, or commercial agent, or of any in-
voice whichdoes not contaiu a true statemeut of ail the particulars herein-
befoie required, or by means of any other false or fraudulent document or
paper, or of any other false or fraudulent practice or appliance whatsoever,
such merchandise,' or the value thereof, shall be forfeited."
As an original question, it might well be doubted whether the mère
words of section 2864 and of section 1 of the act of 1863, declaring
a forfeiture of the goods or the value thereof, would be sufficient to
sustain a suit in personam agaiust the importer for^such value with-
out any seizure of the goods. I do nOt know of any analogy suppdrting
such pénal actions ira personam upon such loose statutory words. The
section does not specify who is to be sued in person, or against •whom
any recovery is to be sought; whether against the owner of the goods,
his agent, or against the person making the entry. Suppose the
owner guilty of fraud, but the agent making the entry innocent, is
the latter, after having sold the goods and turned over the prooeeds
to his principal, to be held liable to pay the value over again to the
United States, without any morè explicit language making him liable
than simply that the value shall be forfeited, without saying from
whom to be recovered ?
The act of 1799, (section 2839,) after declaring a forfeiture of value,
adds "to be recovered of the persùn making entry." By the omission
of thèse, and any équivalent words, in the act of 1863, it might well
be considered that the intention of the latter act was pnly to provide
for the forfeiture of the value of the goods in those cases wbere the
goods had been seized and allowed to be bonded under other provis-
ions of law, a power conoerning which some question has been re-
peatedly made. Though many suits for value bave been brought
since the act of 1863, I am not aware that the attention of the court
has been called to this objection in any préviens action. Omitting,
therefore, any furtber référence to this question, I proceed to the
main ground of the motion, assuming that section 2864, like section
2839, authorizes a suit for value, indépendant of any seizure of the
goods.
Section 12 of the moiety act, passed June 22, 1874, (1 Sup. Eev.
St. 79,) is as follows :
"Any owner, importer, consignée, agent, or other person who shall, with
intent to defraud the revenue, make, or attempt to make, any entry of im-
ported merchandise, by means of any fraudulent or false invoice, aflfidavit,
letter, or paper, or by means of any false statement, written or verbal, or
who shall be guilty of any willful act or omission by means whereof the
United States shall be deprived of the lawf ul duties, or any portion thereof,
embraced or referred to in such invoice, afBdavit, letteï, paper, or statement,
or affected by such act or omission, shall for each offense be flned in any
896 FEDEBAL BEFOBTEB.
sum not exceeding flve thousand dollars nor less than flfty dollars, or be im-
prisoned for any time not exceeding two yeàrs, or both; and, in addition to
such fine, sucli merchandise shall be forfeited; wiiich forfaiture shall only
apply to the whole of tho merchandise in the case or package containing tiie
particular article or articles of merchandise to which such fraud or alleged
fraud relates. And anything contained in any aet which provides for the for-
feiture or confiscation of an entire invoice in conséquence of any item or
items contained in the same being undervalued, be and the same is hereby
repealed."
Section 13 provides that any marchandise entered by any person
viclating the preceding section, but not subjeot to forfeiture under
the same section, may, " while owned by him, or whUe in his pos-
session, to double the amount claimed, be taken by the coUector and
held as security for the payment of any fine inourred." Section 14
of the same aot provides that the omission, without intent to defraud
the revenue, or any of the various shipping charges, commissions,
port duties, etc., which may be required by law, shall not be a cause
of forfeiture of goods or their value; but requires that in such cases
the collector shall add to such charges the further sum of 100 per
cent., -which addition shall constitute a part of the dutiable value.
Section 16 permits no fine, penalty, or forfeiture in any case, existing
or subséquent, unless the jury finds specially an actual intent to de-
fraud. Section 22 provides that no suit to recover "any -peeuniary
penalty or forfeiture of property" under the revenue laws shall be
instituted except within three years, etc. Section 26 repeals ail acts
and parts of acts inconsistent therewith. The section last cited does
not in terms refer to sections 2839 and 2864, nor to the correspond-
ing sections of the acts of 1799 and 1863, from which they were taken,
but repeals whatever is inconsistent with it.
Although the moiety act was passed on the same day with the en-
actment of the Kevision of the Statutes, the latter is only declaratory
of the law as it existed on December 1, 1873, (section 5595;) and ail
acts of congress passed after the latter date are to be construed as
subséquent enactments, and modify the Eevised Statutes accordingly.
Section 5601; V. S. v. Bowen, 100 U. S. 508, 513; Brown v. Jefferson
Co. Nat. Bank, 9 Fed. Bep. 258-260; In re Oregon, etc., Co. 3 Sawy.
614, 617; U. S. v. Bain, 5 Fed, Ebp. 192, 195. The single question,
therefore, is, whether the forfeiture of the value of goods, by reason of
fraudulent undervaluations on the entry thereof , has been repealed by
the provisions of the moiety act. Such considération as I hâve been
able to give to the subject satisfies me that the forfeiture of value in
Buch cases must be deemed superseded and repealed by that act, —
First, because in the passage of the moiety act the whole subject of
fraudulent importations, and the remédies and punishments to be en-
forced therefor, were evidently fuUy and deliberately considered; new
and diffent fines, punishments, and remédies were thereby provided,
which include both punishment of the offender and indemnity to the
government; and thèse, by implication, supersede the former and dif-
TJNITED 8TATB8 V. A.UFFMOEDT. 897
ferent provisions on the same subject : second, because the absolute
forfeiture of the goods denounced by the moiety act is clearly répug-
nant to the alternative forfeiture only "of the goods or the value
thereof , " as prescribed in the previous acts, bo that both cannot pos-
sibly co-exist; and, third, upon the décisions of the suprême court in
analogous cases,
The rule of construction wbere a subséquent statute covers the same
ground as a former one bas been frequently defined by the suprême
court. Thus, in the case of Norris v. Cracker, 13 How. 429, 438, Mr.
Justice Catron, delivering the unanimous opinion of the court, said :
"As a gênerai rule, it is not open to fontroversy that where a new statute
covers the wliole subject-matter of an old one, adds offenses and prescribes dif-
férent penalties for those enumerated in the old law, that then the former stat-
ute is repealed by implication, as the provisions of both cannot stand together."
Mr. Justice Pield, in U. S. v. Tynen, 11 Wall. 88, said, (p. 92:)
"It is a familiar doctrine that repeals by implication are not favored. When
there are two acts on the same subject, the rule is to give efEect to both, if
possible. Bv\t if the two are répugnant in any of their provisions, the latter
act, without any repeallng clause, opérâtes, to the extent of the répugnance,
as a repeal of the flrst; and'even where two acts are not in express terms ré-
pugnant, yet if the latter act covers the whole subject of the first, and embraces
new provisions, plainly showing that it was intended as a substitute for the
first act, it will operate as a repeal of that act."
The same rule was reaffirmed and applied in the case of King v.
Cornell, 106 U. S. 395, 396, S. G. 1 Sup. Ct. Rep. 312, in the case
of Pana v. Bowler, 107 U. S. 529, 638, S. G. 2 Sup. Ct. Eep. 704, and
in Murdockv. City of Memphis, 20 Wall. 590, 617. In the case last
cited, Mr. Justice Miher, in delivering the opinion of the court, says,
(p. 617:)
"A careful comparison of thèse two sections can leave no doubt that it was
the intention of congress, by the latter statute, to revise the entire matter to
which they both had référence; to make such changes in the law as it stood
as they thought best ; and to substitute their will in that regard entirely for the
old law upon the subject. We are of opinion that it was their intention to
make a new law, as far as the présent law differed from the former; and that
the new law, embracing ail that was intended to be preservedof the old, omit-
ting what was not so intended, became complète in itself , and repealed ail
other law on the subject embraced within it."
The language quoted from thèse cases seems to me to be specially
applicable hère. In scarcely any of the cases cited, where a la ter
statute was held to repeal a former one by implication, wa,8 the évi-
dence 80 clear, as it seems to me, both from the provisions of the stat-
ute itself and the history of its passage, that congress intended to deal
with the whole subject, and to déclare what in the future ehould be
the whole law of remedy and punishment, as in the case of the moiety
act, in its dealing with the subject of fraudulent importations, and the
punishment and remédies of the government therefor.
The attention of congress had been called to the whole subject by
what had been deemed to be crying abuses in the administration of
v.l9,no.l3— 57
8&8 , - FEDEBAL EEPOBTEE.
the former law. There were widespread oomplaints that tLe machin*
erj of the law then existing was skillfully worked by agents and in-
formera of the govemment for fcbeir own benefit, to extort large sums
of money from the merchants for trifling and uncertain irregularities
or riolations of law. The chief means by which thèse extortions were
alleged to be practiced were by the institution of suits for vast sums
of money, al] egedto hâve becomedue to the government through for-
feitnres of the value of goods entered during a séries of years preced-
ing. In snch suits, by a preliminary seizure of the books and papers
of the merchant and the détention of them in custody, and by reason
of teohnical forfeitures unaceompanied by fraud, and of the forfeit-
ure of whole invoices for irregularities in a single item, merchants,
deprived of their books and uncertain of the précise facts, were often
eonstrained, through their uncertainty as to the resuit, and the in-
jury to their crédit by the longpendency of suits for such large de-
mands against them, to pay great sums in settlement, far beyond
the bounds of reasonable forfeiture or of legitimate punishment.
The moiety act, paâsed under thèse circumstances, shows, by its
.own provisions, that it was designed to correct the evils complained
of, by means of changes broad and radical: (1) By abolishing the
moiety System entirely; (3) by prescribing more definite rules under
which the books and papers-of merchants might be seized and exam-
ined; (3) by preventing the forfeiture of a whole invoice when only
a part of the cases or packages included in it might be affected by
fraud, (section 12;) (4) by abolishing (section 16) ail fines and for-
feitures, except where a jury should find an actual intent to defraud;
(6) by enaeting, in cases of actual fraud, new and heavy punish-
ments, by Jîne and imprisonment, (section 12;) (6) by enaeting, also,
in cases of actual fraud, the absolute forfeiture of the goods to which
the fraud relates, in place of the former alternative of a forfeiture of
the goods or their value, and thus disallowing civil suits for value
merely, which had furnished the chief means of the previous abuses;
(7) by providing security (section 13) for the collection of fines where
the goods were not seized; (8) by limiting suits to three years, (sec-
tion 22.)
This act, moreover, is more précise and definite in its provisions
than are the former acts, in defining the frauds to be punished; it
embraces every conceivable act of commission or of omission, aceom-
panied by fraud. There are new conditions and qualifications ap-
plying to every part of the former law. As a condition of forfeiture,
in every act of commission, the moiety act requires an actual intent
to defraud; and in every act of omission, it adds, as a further condi-
tion, that the United States be thereby "deprived of its lawful duties,"
(section 12,) a qualification not existing under section 2864. But
why should congress add such a qualification to acts of omission, if
for preeisely the same acts of omission a forfeiture was still to be
incurred under section 2864 witbout any such qualification? The
UNITED STATES ». AUFFMOBDT. 899
two are inconsistent in intention, and the latter act therefore éuper-
sedeB the former. The case of Daxiess v. Fairbaim, 8 How. 636, is
exaetly analogous, where a new qualification upon the power of a jus-
tice of the peace to take acknowledgments, was held to repeal by im-
plication a former statu te without such qualification.
Section 12, moreover, créâtes a new criminal offense for the same
frauds, punishable by heavy fine and imprisonment ; and while, in
its remédiai parts, providing for the indemnity of the government, it
limita the remedy by forfaiture to the goods only, it makes this for-
feiture absolute, so that even bona fid,e purchasers get no title as
against the government ; and if this remedy be lost by a dispersion
of the goods before seizure, it still provides additional means for in-
demnifying the government, not merely by the heavy fines which it
imposes on conviction for the same acts, but by authorizing a seizure
by the collector of any other imported goods of the same merchant,
as security for the payment of any such fines as may be recovered.
Section 13. Thèse fines themselves would, as a gênerai rule, furnish
complète indemnity to the government for fraudulent importations.
In the présent case they would exceed by nearly one-half the entire
amount claimed in this action, if the facts alleged were proved on in-
dictment. There is no inadequacy in the law, therefore, as a means
of indemnity to the government, through the repeal of forfeitures of
value by civil action. The limitation of forfeiture to the goods them-
selves tends to promote vigilance in discovering fraud before the dis-
persion of the goods, and the trial of the questions in dispute while
the transactions are récent. To the honest merchant, the restriction
of suits based upon old transactions to criminal proceedings, opérâtes
as some check against abuses, because criminal proceedings are less
likely to be instituted lightly upon trifling irregularities or small dif-
férences on estimated values, about which the opinion of experts
might differ; while if fraud be proved, the court, through the discré-
tion provided by the moiety act, can adjust the fines and the impris-
onment, so as to bear some reasonable relation to the loss of the gov-
ernment and to legitimate punishment. The moiety act, therefore, as
it seems to me, falls clearly within the gênerai doctrine of the cases
above cited. It covers the whole field of former acts; it croates new
offenses and new punishments for the same subject-matter; it adds
new and important qualifications to the former law ; and it provides
fully, though in a différent way, for the indemnity of the government
and for the punishment of offenders.
Again, it is to be noted that under the provisions forbidding any
fine, forfeiture, or penalty, except in case of actual intent to defraud,
and the prohibition of the forfeiture of any packages except those to
which the fraud relates, not a single préviens statu te can be enforced
in the shape in which it stands. Section 2864 contains no clause
even which can be thus enforced just as it exists in the statute. AU
that could possibly be ''•«ne with it would be to pick out portions of
900 FEDERAL BEPOBTEB.
it, and apply to them the provisions of the moiety aet as modifica-
tions, and enforce them as thus modified. But the moiety act does
not seek or profess to modify thèse former acts when inconsistent
"with it. It enacts its own remédies for the same subject-matter, and
déclares by section 26 that ail acts and parts of acts "inconsiatent
■with" itself are not modified accordingly, but repealed.
The debates in congress show clearly an intention to enact, not
cumulative remédies, but a new System in place of the old.
Mr. Eoberts, in reporting the bill to the house, said :
" We hâve endeavored to provide for adéquate punishment in ail cases of
guilty intent to defraud, and to furnish relief in case of accident or mistake.
We hâve sought to provide for penalties proportionate to the offenses proved
which the présent laws utterly ignore." Cong. Rec. 43d Cong. Ist Sess. vol.
2, pt. 5, p. 4039.
Senator Stewart, (page 4809,) in référence to the twelfth section,
says, in opposition :
"I do not think they could hâve seen how far this section goes to break up
ail laws on the subject ; for reinember this is to take the place of otber stat-
utes, as I understand."
At page 4813, Senator Edmunds says:
"This bill is apparently a substitute for the provisions about frauds on the
revenue which the act of 1799 and of 1830 and of 1832 and of 1866 con-
tained."
Senator Conkling, (pages 4815, 4816,) in answer to the inquiry of
Senator Thurman as to how far the twelfth section would affect ex-
isting laws, said :
"When you deseribe an offense and provide a punishment and repeal of
other statutes, the gênerai rule certainly is that you occupy the ground with
the new statute, and you annul that which before operated upon the same
subject in a différent way. The senator will see, if he will read the whole of
this twelfth section, that not in one respect alone, but with great particularity,
in ail respects of gênerai scope, it covers the ground of the section to which he
has referred."
From the clear expressions ot the framers of the law, therefore, as
well as from the provisions of the law itself, the intent to supersede
former acts appears évident; and the forfeiture of value would be
deemed repealed by implication, even if there were no spécial repug-
nancy tô it in the new law. See, also, Pana v. Bowler, supra; Cook
Co. Bank v. U. S. 107 U. S. 445, 451; S. C. 2 Sup. Ct. Eep. 561;
Bartlet v. King, 12 Mass. 537 ; Nichols v. Squires, 5 Pick. 168.
2. But there is also a clear repugnancy between the provisions of
the moiety act and those of section 2864. Section 12 of the moiety
act, in cases like the présent, déclares an absolute forfeiture of the
goods. Section 1 of the act of March 3, 1863, (section 2864, Eev.
St.,) déclares the alternative forfeiture of the goods or their value.
Under the earlier law the forfaiture was not absolute, but only at the
élection of the government; under the moiety act there can be no
UNITED STATES V. AUFFMOBDT. 901
élection in the government, for the forfaiture of the goods is made
absolute. Under the former, the government might hâve either the
goods or their value, but not both ; and bef ore ik could hâve either it
must elect which it would pursue. The old law not only permitted,
but enforced, an élection by the government. The moiety act permits
no élection, since, as I hâve said, the forfeiture of the goods is made
absolute. Thèse two provisions of the statute, therefore, cannot co-
exist, There cannot be an élection to hâve either the goods or their
value, and, at the same moment, an absolute statutory forfeiture of
the goods themselves. The two provisions are mutually exclusive.
The distinction between the two acts in this respect is of very great
practical importance. Where the law makes the forfeiture absolute,
as the moiety act makes it, the title of the goods is vested in the
government at once, from the moment when the unlawful acts are
committed ; so that a sale of the goods by the importer, bef ore seiz-
ure, to honafide purehasers even, will not oust the title of the govern-
ment. Caldwell V. U. S. 8 How, 366; Henderson's Spirits, 14 Wall.
44 ; U. S. V. rSylSô Cigars, 18 Fed. Eep. 147. But where the for-
feiture is only in the alternative of "the goods or their value," a sale
to a honafide purohaser, before the government has exercised its right
of élection to resort to the goods, will pass a good title, and prevail
against any subséquent seizure by thè government. Caldwell v, U. S.,
supra; U. S. v. York St. Flax Spinning Co. 17 Blatchf. 138; U. S. v.
Foiir Cases of Lastings, 10 Ben. 371. Where, as in section 2864, the
forfeiture is in the alternative, the government's right of élection to
pursue the goods or their value, so long as the goods hâve not passed
into bona fide hands, remains absolute. Though the goods be at
hand and capable of immédiate seizure, the government is not bound
to resort to them; but, at its option, may pass them by and sue the
importers for their value. This is expressly stated by the chief jus-
tice in the case of U. S. v. York St. Flax Spinning Co., supra, where
he says, (page 140 :)
"Until the sale the government may seize the goods and realize their value
by a sale; or it may pass by the goods and look direetly to the wrong-doer
for their value. The eftect of a sale is to take away ail right of proceeding
against the goods, and leave the government to its original right of action
against the fraudaient importer, for the value only. "
But, under section 12 of the moiety act, no such élection can possibly
exist to pass by the goods and sue for their value. The act itself dé-
termines that élection by decreeing the absolute forfeiture of the
goods. The two sections are therefore clearly répugnant in this
respect ; and the earlier statute is, therefore, necessarily repealed pro
tante, and falls within the express language of the repealing clause.
Section 26. No suit for value, therefore, can be maintained so long
as section 12 of the moiety act is in force.
The repeal of the former forfeiture of value, through this repug-
nancy of section 12 of the moiety act, is so clear that no authorities
903 FEDEBAIi BEPOETBB.
seem needed to sustain it. I cite, however, a few instances somewhat
analogous.
In the case of U. S. v. Tynen, supra, the court held that there was
a clear répugnance between the acts of 1813 and 1870 there referred
to, because "the first act makes the puniahment of the offense desig-
nated imprisonment or fine; it provides that the punishment shall be
one or the other, aud in so doing déclares that it shall not be both.
The second act allows both punishments, in the discrétion of the court;
it thus permits what the first law prohibits." There were similar
différences also as respects the term of imprisonment, and the amount
of fine; and the court adds:
"When répugnant provisions like thèse exist between two acts, the latter
is held, according to ail the authorities, to operate as a repeal of the first act, for
the latter act expresses the will of the government as to tlie manner in wLich
the offenses shall be subsequently treated."
So in Com. v. Kimball, 21 Piok, 373, the court (Seaw, C. J.) held
that a former statute imposing a penalty of $20 for each offense was
essentially and substantially ineonsistent with a later statute which
provided a penalty of not more than $20 nor less than $10 for the
same offense; because the former was absolute and im,perative, and
the latter allowed a discrétion.
In Norris v. Cracker, 13 Hdw.'439, the prior statute of 1793, giv-
ing a penalty of $500, to be recovered by the claimants by civil action
for harboring fugitive slaves, was held plainly répugnant to the act
of 1850, which for the same offense imposed a fine not exceeding
$1,000, and imprisonment not exceeding six months, on conviction by
indictment.
On this ground alone, therefore, I should feel compelled to hold
that the forefeiture of value provided by the act of 1863, and under
section 2864, was repealed.
3. The récent décision of the suprême court, in the case of U. S. v.
Clafiin, 97 U. S. 540, affords so strong an analogy to the présent,
though without the absolute repugnancy last mentioned, as to be con-
trolling in this case. That action was brought under the act of 1823,
which deolared that persons knowingly receiving smuggled goods
should "forfeit and pay double their value." The act of July, 1866,
for the same offense, imposed, like the moiety act, a forfeiture of the
goods, and a fine, on conviction, not exceeding $5,000, nor less than
$50, together with imprisonment, not exceeding two years, in the dis-
crétion of the court; but omitting any forfeiture of value. It did not
repeal in express terms the act of 1823; but it did repeal "ail other
acts or parts of acts conflicting with or supplied by it." The court
held that the later act would be deemed a repeal of the former by im-
plication, even had it contained no repealing clause ; that where the
objects of two statutes are the same, whether by way of punishment
for the offense or of indemnity for the loss, and the later act covers
the same ground as the former, in that case the later statute raust be
UNITED STATES V. AUFFMORDT. 903
(leemed not cumulative, but as a substitute for the earlier one. The
décision in that ease is tbe more notewOrthy and empbatic, since it
modified the view of the same statutes previously expressed in the
case of Stockwell v. V. S. 13 Wall. 531, where the former statute was
regardêd as wholly remédiai, and the latter as whoUy punitive; and
both were consequently held to be in force. In the Case of Claflin,
the court say, (97 U. S. 552, 553 :)
"If this were truly the purpose of those acts their objects would not hâve
been the same, and theref ore the second statute could not be regardêd as re-
pealing the former. But a renewed and more careful examination of the two
statutes has convinced us that congre.ss, in the act of 1866, had in viev? not
only punishment of the offense describèd, but indeinnity to the government
for loss sustained in conséquence of the criminal conduet of those guilty of the
offense. The later act denounees a forfeiture of the goods concealed, etc., no
matter in whose hands they may be found. If the forfeiture of double the
value of the goods denounced by the act of 1823 was designed to seeure in-
demnity to the govemment for the vsrrong donc, the forfeiture of the goods
themselves, declared in the act of 1866, must hâve been intended for the same
purpose, and the fine and imprisonment were siiperadded as à vindication of
public justice. If this is so, as we now think it is, the act of 1866 supplied
the provisions of the second section of the act of 1823, and consequently would
hâve repealed them had it contained no repealing clause."
In the Claflin Case, it will be observed, there was no absolute repug-
nancybetween the act of 1833 and tbat of 1866; the former forfeited
double the value; the latter forfeited the goods themselves. A single
statute, however, naight hâve imposed both of those forfaitures, and
the govemment would then hâve derived thrice the value of the goods. —
a measure of damages not unfamiliar in revenue législation, That
case, therefore, was not one of absolute repugnancy, but of substitu-
tion by implication. The later act, besides providing criminal pun-
ishments, also defined the indemnity of the government ; and this, the
suprême court held, must be deemed to be a substitute for the in-
demnity provided by the preceding act.
In the presetit case, in lieu of the alternative forfeiture of the goods or
their value, under the act of 1863 and section 2861, the moiety act, for
the indemnity of the government, denounees the absolute forfeiture of
the goods, just as the act of 1866 did in the Claflin Case; and like that
act, also, it superadds the same fine and imprisonment. In the Claflin
Case, the later act provided a forfeiture of the goods, where the former
act provided a forfeiture of double their value. In the présent case
the moiety act provides absolute forfeiture of the goods, where, for
the same offense, the ea,rlier act proVides an alternative forfeiture of
the goods or their value. The présent case is as clearly one of sub-
stitution as that of Claflin. The principles upon which the Case of
Claflin was decided apply, therefore, in full force to the présent case ;
and, in addition, we hâve hère a clear repugnancy between the later
and the former acts, such as did not there exist.
é. A few other sections of the moiety act furnish some considéra-
tions beuring on the subject under discussion; but none of them, as
904 FBDEBAIi EJEPOETEB.
it seems to me, are very important or décisive. The only section in
which any référence is made to f orf eiture of value is section 14. That
section provides that no omission to state in the entries any of the
varions small matters there referred to, "without intenfc to defraud
the revenue," shall be a cause of forfeiture of goods or their value; but
it requires the collector in such cases to add double the amount
omitted. This, it may be said, is an implied récognition of the exist-
ence of some statute providing for the forfeiture of value on account
of such omissions, and the continuance of such statutes in force,
wbere there is intent to defraud. This section, however, applies to
a very small and limited class of errors or omissions having nothing
to do with the présent case. There were pending suits to which the
first part of this section was intended to apply, and that alone would be
a sufiScient reason for the référence to f orf eitures of values. The infer-
ence sought to be drawn from it is of a négative character, and, as re-
spects any subject clearly embraced in section 12, has no force as
against the express provision of the latter section. The first part of sec-
tion 14 is in reality surplusage, except as introduction to the last
clause ; since under section 16 no such forfeiture, either of goods or
their value, in existing or subséquent suits, could be had without an
actual intent to defraud. The essential part of the section is the lat-
ter half of it, which authorizes " the collector to impose double the
omitted amounts in cases free from fraud.
Section 22 assigna a limitation of three years for the recovery of .
any pecuniary penalty or forfeiture of property. This section could
only apply to future suits. If forfeitures of value were supposed to
be continued thereaf ter, no reason appears why suits for value should
not bave been included within the period of limitation, and the lan-
guage hâve been made to read, "forfeiture of property or the value
thereof." So, aiso, in the last paragraph of section 12, we find no
récognition of any future forfeiture of value, such as would bave been
expected if such forfeiture was intended to remain as part of the
existing law. This paragraph déclares that "anything contained in
any act which provides for the forfeiture or confiscation of the entire
invoice in conséquence of any item or items contained in the same
being undervalued, be and the same is hereby repealed." The par-
agraph seems to hâve been inserted shortly before the passage of
the bill, by amendment, out of abundant caution ; and the same cau-
tion which dictated that would naturally hâve provided, not merely
against a forfeiture or confiscation of ail the goods invoiced, but also
against forfeiture of the value thereof, if forfeitures of value had been
supposed to be retained. On the whole, the other provisions of the
moiety act seem to me to accord, rather than to disagree, with the
construction I bave given to section 12.
5. In what has been said, the subject has been considered as
though sections 3864 had contained, when enacted on the twenty-
second of June, 1874, a forfeiture of the goods or the value thereof.
UNITED STATES V. ABFFMOKDT. 905
like section 1 of the act of March 3, 1863, from ■which section 2864
was taken. In fact, however, in the Eevised Statutes, as originally
enacted, section 2864 did net contain the words "or the value thereof,"
but provided for the simple forfeiture of the goods. By the act of
February 18, 1875, entitled "An act to correct errors and to supply
omissions in the Eevised Statutes of the United States," this omis-
sion in section 2864 was corrected by restoring the words "or the
value thereof," as they stood in section 1 of the act of March 3, 1863,
and as section 2864 now stands in the second édition of the Eevised
Statues.
On behalf of .the government it is claimed that this actof 1875 has
re-enacted forfeitures of value in the cases provided by section 2864,
because it is an act later than the moiety act, and directs that section
2864 be amended by inserting the words "or the value thereof." If
the act of 1875 had been designed as new législation intended to
change the law existing at the time of its passage, in spite of any
statutes passed after December 1, 1873, it would undoubtédly hâve
the effect claimed for it. A slight considération, however, of the cir-
cumstances and of the enacting clause of the act itself, are snflSicient
to show that such was not the intent of the act of 1875, and that
no such effect can be given to it. The sole purpose of that act was
evidently to correct textual errors and omissions in the work of revis-
ing the statutes, and to make the printed volume called the Eevised
Statutes state truly and correctly what it was intended to state,
namely, the statutory law as it existed on the first of December, 1873.
That such only was the purpose of the act of 1875, is stated, as it
seems to me, as clearly and emphatically as words can express, in
the enacting clause of the act itself, which is as follows: "Be it en-
acted, etc., that for the purpose of correcting errors and supplying
omissions in the act entitled 'An act to revise and consolidate the
statutes of the United States in force on the firs^ day of December,
1873,' so as to make the same truly express such laws, the foUowing
amendments are hereby made therein : " Then foUow 67 amendments.
The thirty-third is the one hère in question, amonding section 2864
by inserting after the word "merchandise" the words "or value
thereof." The enacting clause above quoted déclares that this amend-
ment to section 2864 "is hereby made" so as to make the same (sec-
tion 2864) "truly express such law;" that is, the law on that subject
in force on December 1, 1873. Necessarily, therefore, this amend-
ment must be read, not as new législation, or as a new law enacted
on February 18, 1875, to take effect from that time, and to change
intermediate législation, but simply as a correction of the text of the
Eevised Statutes, so as to make section 2864 express what it was in-
tended to express, namely, that by the law as it existed on the first
day of December, 1873, for the causes there mentioned, the mer-
chandise or its value should be forfeited.
906 FEDEKAL BEPOETEK.
In 80 far as the former law, by an unintentional omission, was unwit-
tingly repealed by force of section 5596, the object of the act of 1875
Avas to restore the law as expreesed in the Eevised Statutes towhatit
actually was on December 1, 1873, and to what the revisors and con-
gress intended to express in them. If there were no independent
statutes in the mean time modifying the law as it existed on Decem-
ber 1, 1873, the effect of the act of 1875 was, indirectly, aiso to re-
store the law on and after February 18, 1875, to what it was on De-
cember 1, 1873, by doing away with the effect of the repealing clause
of the Eevised Statutes on that particular subject, (section 5596.)
That, however, was the indirect resuit, not the direct object, of the
law of 1875. The object was to make the Eevised Statutes what they
professed and were intended to be — a true statement of the law exist-
iiig on Decamber 1, 1873; and where there were other subséquent
statutes designed to change the law existing on that date, the act of
1S75 plainly had no référence to them, and no design to abrogato
those changes. Such subséquent acts modify the Eevised Statutes
as amended by the act of 1875, because the amendments of 1875 were
designed as corrections of, and as a part of, the Eevised Statutes
themselves, and not as new législation on the topics to which they
relate. The amendment must be treated, for ail purposes, precisely
as if it had been a part of section 2864 as originally enacted; and
section 2864 is therefore subject, in its amended form, to the provis-
ions of section 5601, declaring that ail acts passed after December 1,
1873, in conflict with any provision contained in the Eevised Statutes,
shall bave effect as subséquent statutes, and as repealing any portion
of, the Eevision inconsistent therewith, and hence subject to the mod-
ifications of the moiety act as a subséquent statute. This intention,
so plainly indicated by the enacting clause, is still further indicated
from the last section of the act of 1875, namely, that the secretary
of state is; "directed, if practicable, to cause this to be printed and
bound in the volurp*e of the Eevised Statutes of the United States."
This précise question, as to the construction of the act of February
18, 1875, arose in the court of claims, in Ludington v. U. S. 15 Court
CL 453. In the opinion of the court, Eichakdson, J., says:
"In our opinion this amendment {i. e., under tlie act of 1875) was not in
the nature of a new enactment; it is to be taken and construed as thoiigh the
Revised Statutes Jiad been originally adopted, with the altérations thus made
incorporated into them in their proper place, as has been done in the second
«dition; and tliat they are ail subject to the provisions of sections 5595 and
5601."
No case bas been referred to intimating any différent construction,
and it seems to me entirely clear from the language of the act itself.
See, aiso, Wright's Case, 15 Court CL 80.
A somewhat similar question arose in the case of Reg. v. Overseers
of St. G tics, 3 EL & El. 223, in which the court of queen's bench heJd
UNITED STATES ». ÀUPFMOBDT. 907
that tîie act of 11 & 12 Vict. c. 111, correcting certain errots in the
provisions of the act of 9 & 10 Vict. c. 66, must be considered and
read as forming parts of the original act.
Prior to the enactment of the Eevised Statutes there was no exist-
ing law whieh gave any color to the supposition that the alternative
forfaiture of the goods or the value thereof, as provided by section 1
of the act of March 3, 1863, had been repealed. The omission, by
the revisors, of the words "or the value thereof," in section 2864,,was
plainly an error. This appears conclusively on consulting their orig-
inal report, title 36, entitled "collection of duties upon importe," in
^vhich section 2864 is embraced. That report is prefaced by the fol-
lowing note :
"N. B. In this pamphlet, words in the section printed in Ualios are new;
those in brackets [thusj are found in the existing law, but are recommended
to be omitted."
Section 2864, as contained in that report, bas no words either in
italics or in brackets. Asitwas not the duty of the revisors to change
the law, but to consolidate it, and as they were autborized to omit only
redundant or obsolète enactments, and to make such altérations as
might be necessary to reconcile the contradictions, supply the omis-
sions, and amend the imperfections of the original text, (14 St. at
Large, p. 74, § 2,) it is clear that the omission of the words "or the
value thereof" in their report of section 2864, without référence to
this omission, either in italics or in brackets, thèse words being a
material part of the existing law, must hâve been accidentai.
The debates in congress show môst cleàrly that the intention of the
act of 1875 was to correct errors, and not to enact new législation to
speak from that date. Mr. Poland, in introduoing into the house the
act of February, 1875, said that the object was simply to correct the
errors of the revisors and to make it certain that the law is not
changed. Mr. Hoar said :
" We did our very best that our Révision of the law should not change the
existing law in any particular. It bas been discovered that by misprints, by
an occasional omission of a word, by perhaps some misàpprehension by the
revisors as to the effect of a phrase, tlie law, in our judgment has been
changed in some particulars by the Revision. We hâve now introduced a
bill simply to restore the law to what it was; and I think members of the
house should not, because they think particular législation désirable, en-
deavor to hold on to what was accidentally donc, without its being under-
stood by the house or the committee. I submit that we should pass this bill
just as it is, and if a change of the law upon any point be desired, let it be
done by affirmative législation,"
In the senate, Senator Conkling, in a striking passage too long to
be quoted in fuU, said :
"Certain words which stood in the law, which are part of the law, which
are operative words, which the commissioners originally, and ail who fol-
lowed theha, including the two houses of congress, were directed to préserve
and reproduce unimpaived, certain such Words, it turns out, were drOpped,"
(from the Revision.) "Xow, what is the function of this billî Simply tu
968 FEDERAL BEPOBTEB.
put them back — simply to correct this déviation from the statutes. There-
rore, it is a great deal more then the senator from California saya. It is
more than the case where in a single instance, by a simple aet of législation,
the two houses of congress inadvertently fall into an error. It is a case
where a whole course of législation required one single thing, to-wit, a truth-
f ul and absolute reflex of the whole body of law as it stood; and in attempt-
ing to do that, ail concerned, including the two houses of Congress, fell into
an error. Now we corne with this bill, the purpose of which is to correct
that error; and what does the honorable senator from Connecticut propose ï
ïo Jiold up for examination the merits pt tlie original provision ; and when
we are attempting to verify and correct a purely ministerial proceeding of
eodifying the latos, the senator wishes to go into the broad question of the
merits of those laws which we proceeded to codify. * * * "We are now
simply engaged in making a truthf ul completion of that work in which com-
missioners, committees, and congress hâve been engaged, which has no more
to do with the merits or the defects of the laws as they exist than the paint-
ing of the portrait truthfully has to do with the beauty or the deformity, the
hue or the âge, of the original from which it is painted. If this codification
is true and honest, it is a reproduction of the laws as they stand, and not a
production of the laws as the senator from Connecticut thinks they ought to
stand, and as he is abundantly able to make them stand, when we are con-
sidering a bill appropriate for that purpose."
It is very clear, therefore, that nothing was further from the inten-
tion of congress in passing the act of February. 1875, than to enact
new législation, or to abrogate those changes in the law existing on
December 1, 1873, which it had designedly made by other statutes
passed since the latter date. Had such been the intent of the act of
1875, its passage would hâve involved a reconsideration and revision
of every statute passed between December 1, 1873, and February 18,
1875.
6. It is urged, however, that if, by the moiety act, the forfeitures
of value were already repealed, no reason remained wby congress, in
1875, should pass the act to amend section 2864 of the revised stat-
utes by inserting the words "or the value thereof," unless they in-
tended to re-enact that provision of the law. What has been already
said seems a sufficient answer to this objection. By the Eevision
congress had undertaken to déclare what was the statutory law exist-
ing on December 1, 1873. The Eevised Statutes as enacted pur-
ported andprofessed to state this law truly, (sections 5595, 5596,)
but they did not do so. Section 2864, among others, was a false
statement of the law as existing on December 1, 1873, in an impor-
tant particular, through the omission of the words "or the value
thereof." Historioal truth, if nothing more, required the omission
of thèse words to be supplied ; otherwise, the statutes as enacted
wôuld remain a lasting monument of error. This alone, even if there
were no practical reasons for correcting the error, would hâve been a
sufficient reason for the amendment made by the act of 1875 — -an
amendment which did not profess to be new législation, but an amend-
ment of the Eevised Statutes only.
UNITED STA.TSS V, AUFFHOBDT. 909
But there were reasons of a practical character, also, rendering it,
if not essential, at least appropriate and désirable, tbat the correction
should be made, notwithstanding the fact tbat forfaitures of value
under section 2864 were already repealed by the moiety act. For the
Kevised Statutes, passed June 22, 1874, tbrough the omission of the
words "or the value thereof," seemed to déclare that on December 1,
18T3, and subséquent thereto, no law was in force authorizing a forfeit-
ure of value for the causes stated in section 2864, (section 5596.) This
was f aise and deceptive. The f orfeiture of value had not been repealed
by any existing law until the passage of the Eevised Statutes and of
the moiety act, on the same day, in June, 1874. Forfeitures of value
might hâve been incurred upon entries made in the mean time, and
suits therefor might bave been then pending, in which the right of re-
covery would appear to be swept away, through the false déclaration
of the Eevised Statutes, that on the first of December, 1873, notwith-
standing the act of March 3, 1863, (section 2864,) only a proceeding
for the forfeiture of the goods could be maintained. To prevent con-
fusion and embarrassment in suits arising ont of transactions occurring
during the period from December 1, 1873, to June 22, 1874, it was dé-
sirable, if not necessary, that the correction of section 2864 should
be made . The law f orf eiting value was still in force during this period,
notwithstanding the false déclaration of section 2864, as originally en-
acted, and section 5596 to the contrary, (U. S. v. Glaflin, 97 U. B. 548,
549;) but the false statement of what the law was on December 1,
1873, and afterwards, as presented by section 2864, as originally en-
acted, was calculated to create great practical embarrassment, and
needed tobe correeted accordingly.
For thèse reasons, I must treat the amendments made by the act of
February 18, 1875, as parts of the Eevised Statutes, and as though
section 2864 had been originally enacted in its amended form. The
moiety act, under section 5601, is to be regarded as subséquent légis-
lation ; and as section 12 of that act, both by implication and by dear
repugnancy, repeals the pre-existing law authorizing the alternative
forfeiture of the goods or their value in cases of fraudulent underval-
uations, it foUows that the plaintiff could not, upon any possible proof,
recover; and a verdict must, therefore, be directed for the défendant.
This case was afflrmed by Wallaoe, J., on appeal to the circuit court,
May 5, 1884. No opinion rendered.
910 fUDBBAIi BEPOBTEB.
i United States v. Lane.
[Oireuit Court, S. D. Wisconsin. December 27, 1883.)
Pdblic Land— Entrt-^Kight to Cut Timbeb.
One who hasentered upon public )and according to law for the purpose of
claiming a homestead thereiii, and is residing thereon in good failli, and ini-
proving it for agricultural purpoaes, is entitled to cut so much timber from tlie
Jand as is necessary for lus actual improvements; but unlil he bas received bis
patent bt: cannot cut timber for any other purposes nor under any other con-
ditions.
At Law.
G. W. Hazelton, for the United States.
James Freeman, for défendant.
DïER, J., (charging jury.) This is an action of replevin to re-
cover a quantity of timber claimed by the government to hâve been
illegally cut by the défendant from certain lands in Langlade county
in this state. The claim of the plaintiff is that the défendant cut 152
pine treés standing on this land amountingto 156,851 feet. It seems
that in March, 1882, the défendant made an entry of the lands men-
tioned, being a quarter section, as and for a homestead under the laws
of the United States, as every person who is the head of a family,
and a citizen of the United States, is entitled to do. There is testi-
mony tending to show that he went into oecupancy of the premises,
and it doés not seem to be disputed that in the winter of 1882-83
he cut from thé land a quantity of pine timber growing thereon.
The controversy between the parties is concerning his fight to cut
this timber and the quantity he cut. It is permissible for any such
land claimant, provided he is living on the land and improving it for
agricultural purposes, to cut and remove from the portion thereof to
be cleared for cultivation so much timber as is actually necessary for
that purpose, or for buildings, fencea, and other improvements on the
land entered. This he bas a lawful right to do. But where the per-
son does not make the land his actual résidence, and cultivate and
improve it, or where the timber is not cut for the purpose of clearing
and improving the land for agricultural purposes, or where the facts
show that the entry was not made in good faith, but for the mère pur-
pose of stripping the land of the valuable timber upon it, the case is
one in which the cutting is unlawful. In clearing for cultivation,
should there be a surplus of timber over what is needed for purposes
of improvement, the claimant may lawf ally sell or dispose of such sur-
plus; but it is not lawful for him to etrip the lands of its timber for
the sole purpose of sale or spéculation, until he has made final proof
and acquired title.
Thèse are the principles of law governîng this case, and, as yoa
perceive, the primary question hère is, did the défendant cut this
timber for agricultural purposes; that is, in good faith, for the pur-
DNITBD STATES V. LAl^B. 911
pose of improving the land ? What was his object ? Was it to clear
the land for cultivation ? Was it in putaiiance of a purpose to im-
prove the land and to make it his home ? Or was his purpose merely
to eut the timber off without referôticé to immédiate future use of
the laud, and to sell and make moriey out of the timber so eut? In-
cidental to thèse points of inquiry is the question whether or uot he
entered the land in good faith, intending to use and occupy it as a
homestead. Indeed, as you see, thç, question involved is Iftrgely one
of good faith, and, in determining whether the timber was eut for
purposes of husbandry, or merely for purposes of sale and pecuniary
profit, you will look into the circumstancés under which the cutting
was done, the manner in which the timber was eut with référence to
localities on the land, and the kind and quantity of timber eut. You
will consider what improvements there were upon the land, whether
the défendant was living on the land; in short, whether he was deal-
ing with it in good faith intending to cultivate and improve it for
farming purposes.
You understand what the daims of the parties are. The défend-
ant insists that he in good faith entered the land for a homestead;
that he made improvements upon it; that he was makiûg prépara-
tions for other improvements when notice was given him of the can-
eellation of his entry and claim; that he occupied and lived on the
land ; and that the timber in question was eut for the sole purpose
of improving the land and devoting it to agricultural uses. If this
be so, then the plaintifif is not entitled to recover. But the contrary
of ail this is claimed by the government, and its contention is that
the land was not occupied by the défendant in good faith as and for
a homestead; that this timber was eut with the primary purpose of
selling it and making money out of it; that it was. not the intention
of the défendant in good faith to cultivate and improve the land; and
that the cutting of the timber was not done for the purpose of clear-
ing the lànd for agricultural uses. Various circumstancés are relied
on in support of this claim, and, if the government s contention is
supported by the facts of the case, then the conclusion must be that
the timber was illegally eut, and the plaintifif, in that state of the case,
would be entitled to recover it in this action.
Verdict for plaintifif.
912 fedebal befobtbb.
United States v. Evans.
{District Court, D. Oalifornia. April 3, 1884.)
PkOCURING THE COMMISSION OF PerJTJET — ELEMENTS OF THE CrIME — KNOWL-
EDGE.
Toconstitute the crime of procuring perjury to be committed, it is not enough
that both the accused and the falae witness knew the falsity of the statements
Bworn to, but the accused must also hâve known that the witness knew the
statements to be f aise.
Indictment for Subornation of Perjury, On demurrer.
S. G. Hilbom, U. S. Atty., and Carroll Cook, Asst. U. S. Atty., for
the United States.
A. P. Van Duzer and J. J, De Haven, for défendant,
HoFFMAN, J. The indictment, after the usual formai allégations,
which seem to be quite suffioient, charges in substance that the de-
fendant procured one Bumett to commit the crime of perjury by
swearing to certain allégations contained in an affidavit made and
subscribed by him on an application for an entry of certain timber
lands, It avers that Bumett knew that thèse allégations were false,
and it négatives them by averring what the facts were. It also avers
that the défendant, when be procured Bumett to swear to thèse allé-
gations, also knew that they were false. It does not aver that he
knew that Burnett was aware of their falsehood. To sustain an indict-
ment for procuring a person to commit perjury it is obviously neces-
sary that perjury bas in fact been committed. It cannot be com-
mitted unless the person taking the oath not only swears to what was
false, but does so willfuUy and knowingly. He who procures another
to commit perjury must not only know that the statements to be
swom to are false, but also that the person who is to swear to them
knows them to be false ; for unless the witness bas that knowledge the
intent to swear falsely is wanting, and he commits no perjury. It is
therefore essential that the indictment should aver, not only that the
statements made by the witness were false in fact, and that he knew
them to be false, but also that the party procuring him to make those
statements knew that they would be intentionally and willf ully false on
the part of the witness, and thus the crime of perjury would be com-
mitted by him.
The allégations of the indictment in this case are consistent with
a belief on the part of the défendant that the party alleged to hâve
been suborned supposed the statements he was expected to make to
be true. In that case he would not be guilty of perjury, nor could the
défendant be adjudged guilty of procuring himto commit perjury.
Demurrer sustained.
See U. S. V. Dennee, 3 Woods, 39; Com. v. Douglass, 5 Metc. 244; 2 Archb.
Crim. Pr. &P1. Pom. Notes, 1750; 2 VV^bart. Crim. Law, (8th Ed.) 1329.
BEADLEY V. DULL. 913
Bbadlbt and others v. Dull and others.
{Oireuit Court, W. D. Pennsylvania. March 24, 1884.^
1. Patents fob Inventions— Dbath of Patentée — Titlb Vests m Adminis-
TRATOR.
Under tlie act of July 8, 1970, and the Revised Statutes, upon the death of a
patentée intestate, the title to the patent vests in his administrator, and not in
his heirs.
2. SAME— CONNSTETJCTION OP PATENT.
In the interprétation of a patent, the court, proceeding in a libéral spirit,
should sustain the construction claimed by the patentée himself, if this can be
done Consistently with the language he has employed.
3. Samb — Patent No. 121,746— Infringbmbnt.
Letters patent No. 121,746, for an apparatus for drying sand and gravel,
granted to Allen H. Bauman, Deoember 12, 1871, oonstrued, and the défendants
lield to infringe.
In Equity.
Bakewell d Kerr, for complainants.
George H. Christy, for défendants.
AcHESoN, J. The grounds of défense are — First, that the plain-
tiffs hâve not shown title to the patent sued on ; and, secondly, that
there has been no infringement by the défendants.
1, The patent was granted on December 12, 1871, to Allen H.
Bauman. He subsequently died intestate, and letters of administra-
tion upon his estate were duly issued to Eeuben P. Bauman, who as
administrator sold and assigned the patent to the plaintiffa. The
défendants controvert the title thus acqinred, maintaining that upon
the death of the patentée, intestate, the patent became vested in his
heirs, and therefore that the administrator was without authority to
make sale and assignment thereof. The argument is based on the
change in the patent law made by the twenty-second af'ction of the
aet of July 8, 1870, (reproduced in section 4884 of the Bevised Stat-
utes,) whereby it is enacted that the patent shall contain "a grant to
the patentée, his heirs or assigns," the previous législation having
provided for a grant to the patentée, his heirs, administrator s, execu- .
tors, or assigns. This change, in connection with some other provis-
ions of the existing law, it is contended indicates an intention on the
part of congress to secure the benefits of the invention to the heirs of
the deceased patentée, in case of intestacy, to the exclusion of the ad-
ministrator. An impressive argument was made by counsel in sup-
port of this view. But the contrary has just been decided in the first
circuit in the case of Shaw Relief Valve Co. v. City of New Bedford,
19 Fed. Eep. 753, in which was involved the identical question now
before me. To the able opinion of Judge Lowbll in that case I can
add nothing. Adopting his conclusion I must overrule this défense.
2. Whether or not the défendants infringe dépends on the construc-
tion to be given to the claim. The subjeot-matter of the patent is a
v.l9,no.l3— 58
914 raDEBAL EEPOETES.
machine for drying sand and gravel. The invention (so the spécifi-
cation déclares) relates to the combination of iron or métal pipe or
pipes, so constructed and arranged in parallel and longitudinal lines
as to form a surface upon which the wet sand or gravel ia placed to
be dried by the application of fire or steam. The surface formed by
the pipe or pipes forms the bottom of a box or frame which contains
the wat sand or gravel. The pipe or pipes throughout the whole sur-
face are heated by tire or steam paasing through them, so as to dry
the sand or gravel, which, when dried, slips and passes through the
openings or spaces between the lines of pipe, the wet sand or gravel
in the box or frame above drying gradually and passing through,
ready for shipment a^nd use. "AA is the box or frame in which the
wet sand or gravel is placed preparatory to being dried. The bottom
of this box or frame is formed by the sets of pipes shown by ce, etc. On
the surface formed by thèse pipes the wet sand or gravel rests and
adhères until it becomes dried, when it passes through the openings
or spaces between the pipes." If fire is used, the pipes are heated
from a fire-chamber at one end^ the fire, heat, and smoke passing
through the pipes into flues at the other end; but the arrangement
described foi: heating the pipes is somewhat différent when steam is
employed.
In the body of the spécification occura the following passage :
"Immediately underneàth the whole ôf the surface formed by the pipes is
placed a wire sieve, FF, to prevent the sand or gravel from passing too rap-
idly through the spaces or openings between the pipes, and before the same
is suflficiently dried; the sieve so used to be coarse or fine, according as the
sand or gravel is coarse or fine."
There is but a single claim, which is in thèse words :
"The app'.iratus herein described for drying gravel or sand, consisting of
the fire-chamber, flues, heating pipes, and case, ail constructed and arranged
substantially as set forth. "
The word "case" doesnot appearin the descriptive part of the spéc-
ification, and is used in the claim only. What does the term com-
prebend? The défendants insist that it includes the sieve, FF, as
,an essential constituent; and as they do not use a sieve or any sub-
stitute therefor, it is contended that they do not infringe. Webster
dehnes "case" to be "a covering, box, or sheath; that which ineloses
or contains." Now, turning to the spécification we discover that AA
is a "box or frame" in which the wet sand or gravel is placed to be
dried. What constitutes the bottom of this box? Ts it tbe sieve ? Cer-
tainly not, if the spécification is to furnish the answer ; for it distinctly
asserts, not once only, but twice, that the bottom of the box or frame,
A A, is composed of sets of pipes so constructed as to form a surface
upon which the wet sand or gravel. rests during the drying process.
We hâve, therefore, the ",case" complète in ail its parts without the
nid of the sieve, FF. In fact, it is not an essential part of the ma-
chine, for without its co-operatiou the apparatua suecessfully performs
LliOtD V. UUjUSB. 915
its contemplated yrork. The truth seems tô be tiiat the BÎeve, under
certain conditions, may be a serviceable addition to the machine, but
is not an indispeneable part. And as it is not mentioned in the claim,
and is not neceesary either to constitute the "case" or to the sùccess-
ful working of the apparatus, it would seem to be a fair conclusion
that is not an élément of the patented combination. This view but
conforma to the spirit of the rule for the interprétation of patents au-
thoritatively declared in Klein v. Russell, 19 Wall. 466, where it is
said:
"The court should proceed in a libéral spirit, so as to sustain the patent
and the construction claimed by the patentée himself, if this canbe done con-
sistently with the language he has employed. "
Let a decree be entered in favor of the plaintiffs.
LiLOYD V. Miller and others.
(Circuit Court, W. 1). Pennsylvanie. February 12, 1884.)
1. Patents for Inventions— PuDDLtNO-FDRNACH.
Letters patent No. 135,650, granted February 11, 1873, to E. Lloyd, for an
improvement in puddliug-furuaces, conatrued, and hdd, not to be infringed by
the défendants
2. 8ame— Infkingement.
The plaintifis' invention, which secures protection from the intense beat
to the walls of the chimney or staok of the puddling-furnace, by means of an
opening into the staclc at its base, whereby a current of air drawn from an air-
conduit underneath tlie f urnace-bed is permitted to enter the stacli, Md not to
be infringed by a construction whicli secures such protection to said walls at
the base of the' stack bj an exterual circulation of air.
In Equity.
D. F. Patterson and E. E. Cotton, for complainant.
Bakewell é Kerr and George H. Christy, for respondents.
AcHESôN, J. The plaintiff's letters patent — No. 136,650, dated
February 11, 1873 — are for an improvment in furnaoes for boiling,
heating, and puddling iron. The objects to be attained thereby as
stated in the spécification, are the prévention of the rapid burning
out of the hearth-plate and the base of the chimney or staek, and the
faeilitating of the combustion of the inâammablé gases in the furnace
by supplying air thereto, thereby utilizing fuel and preventing làrgely
the escape of smoke. The furnace described in the spécification and
accompanying drawing — aside from the plaintiff's improvements —
is a puddling furnace of the well-known kind, having the ordinary
exit-flue leading into the high chimney or stack.
The invention is thus described :
"Beneath the hearth-plate, c, and a plate, e, [which is merely the cotitinu-
ation of the hearth-plate under the neck] is an air-conduit, G, which extenils
916 FJIDEBAL BEPOKTBB.
from theash-pit ôpenlhg, E, to the back wall of the stack, C, and oommunîcates
with this stack at its hase by meana of an opening, g. This will allow [the
spécification proceeds to déclare] a current of air induced by the draft of the
stack, 0, to enter the stack àt its junction with the flue, h."
The resulting advantages tfaereby secured (as is afiBrmed) are the
folio wing : First, the current of air so entering the stack will "violently
turn back the fiâmes rushing through the flue, h," retard the escape
of inflammable gases, and mixing therewith promote their combustion
in the furnace. Second, the air in its passage through the conduit,
G, will absorb heat from the hearth-plate and plate, e, and keeping
down their température, préserve them. Third, "and as the air im-
pinges on the walls of the chimney at its base, thèse walls will be
protected from the intense heat to whioh they are subjected in other
puddling furnaces."
The claim is in thèse words :
" The air-conduit, G, arranged beneath the hearth and coramunicating with
the chimney or stack at the base thereof, for the purposes and in the manner
substantially as described."
It was not a new thing to let air circulate underneath the hearth
of a puddling furnace to cool and préserve it; and it is showu that
for many years prior to the plaintilï's invention such furnaces were
constructed with a passage-way or conduit for air beneath the hearth
and extending from the ash-pit opening to the back-wall of the stack,
with an aperture through that wall outwardly into the external air;
80 that this conduit was supplied with air from both ends, the fresh
air coming in at the stack-end passing underneath the base of the
stack on its way to the ash-pit. Nor was it new to promote combus-
tion in the furnace by a supply of heated air drawn from underneath
the puddling hearth. I incline, however, to think that the plaintiff's
method of construction whereby communication is secured between
the air conduit, G, and the base of the stack, by means of an opening
into the stack, is new, at least in puddling furnaces. And, assuming
that the défense of anticipation bas not been made out successfully,
I ,address myself to the inquiry whether the défendants infringe the
plaintiff's patent.
The disiinguishing feature of the plaintiff's invention is the open-
ing, g, into the stack at its base, whereby a current of air, induced
by the draft of the stack, is permitted "to enter the stack." Great
prominenoe is given to that opening in the spécification and accom-
panying drawing, and, although not expressly mentioned in the claim,
it is necessarily implied. It is indeed indispensable, for without the
opening, g, there would be no communication whatever between the
air-conduit, G, and the chimney or stack. Every advantage specified
or contemplated is altogether due to that opening, which, in my judg-
ment, is of the essence of the invention.
The alleged infringing furnaces were constructed by William Swin-
dell under three patents for improvements in métallurgie furnaces
LLOYD V. UILLBB. 917
granted to him in the years 18T5 and 1878. In the défendants' fur-
naces the gas from the producer — where the fuel is consumed — is
admitted to the bed through a number of ports arranged below an
equal number of hot air ports. A séries of air-flues pass under the
bed — but not in contact with the bottom — and over the crown or aroh
of the furnace to the end where the gas enters, and the gas and air
there meeting, pass together into the combustion chamber, which con-
tains the iron to be worked. The in-going air is heated, and becomes
more and more heated, as it passes over the arch towards the dis-
charge ports, by reason of theflues through which it courses being in
contract with alternate flues which conduct the waste heat from the
combustion chamber. Combustion begins when the gas from the
producer meets the hot air, and uniting they enter the bed. The
waste and heated products of combustion pass out of the opposite end
of the bed into flues which extend over the crown or arch of the fur-
nace and lead to the stack. No part of the air enters the waste-
liues without first passing through the combustion chamber and it
reaches the stack altogether through the waste-flues.
It cannot be pretended, and indeed it is not urged, that themethod
of construction found in the défendants' furnaces secures the first
two above-enumerated advantages which appertain to the plaintifif's in-
vention. Swindell's air-conduits hâve no tendency to cool the hearth-
plate or bottom of the furnace, and he does not conduct into the stack
a eurrent of air to retard the escape of inflammable gases or promote
their consumption in the furnace. There is indeed no connection or
direct communication between his air-flues and the stack, the air as
we hâve seen, reaching the stack through the waste-flues after it bas
fully served its purpose in the combustion chamber.
It is, however, earnestly contended that Swindell, by a mère struc-
tural or formai change bas secured, and that the défendants enjoy the
third advantage due to the plaintiff's invention, viz., protection to
"the walls of the chimney at its base, " from the intense beat to which
they are subjected in other puddling furnaces. The plaintiff's the-
ory is that the arched waste flues of the defendant's furnace are part
of the chimney or stack, which, he insists, begins at the point where
thèse flues leave the combustion chamber, and, as at that point the
air passing in through the air flues absorbs heat from, and tends to
préserve the walls of the waste flues, he maintains that there is an
infringement of his patent. I hâve great difficulty in accepting the
hypothesis that the arched waste flues are part of the chimney or
Btack within the meaning of the plaintiff's patent. It is plain to me
that when his spécification speaks of the chimney it means the high
stack, the two words being used as équivalents. Now I do not see
that the defendant's arched waste-flues are any more a part of the
chimney or stâck than is the flue, h, in the plaintiff's furnace. The
♦'unction of each is to convey the waste heat, smoke, etc., from the
combustion chamber to the stack. But if the arched waste-flues be
918 rSDBBAL BEPOBTEB.
considered as part of tbe chimney or stack, the fact remains that
there is no communication between the air-âues and waste-âues by
means of an opening. In truth, there is no communication whatever
between them. They alternate, and are built side by side, up, over,
and around the arch of the furnace, but they are completely separated
from each other by brick walls, four and one-half inches thick. It is
also an assumption of the plaintiflf that the defendant's arched air-
flues are "compartments of the chimney." But surely they corne not
within his own counsel's définition of a chimney, viz., "the flue whieh
leads from the combustion chamber to conduct waste beat and smoke
away." They perform no such service, Their function is, to supply
the workiug chamber with hot air to promote a vivid combustion.
Incidentally the in-going air does absorb beat from the oommon di-
vision walls between the two sets of flues, and thus tends to the pré-
servation of thèse walls, but thjs is not effected by any means dis-
closed by the plaintiff's patent, nor by any method analogous thereto,
or Buggested thereby. In no possible view of the case can the plain-
tiff's prétentions be sustained without holding that the opening, g, into
the chimney or stack for the admission thereinto of a current of air is
non-essential, and that external contact with the walls of the chimney
or stack at its base is "communication" within the meaning of his
spécification. But such constructive expansion of the spécification
is, it seems to me, utterly inadmissible. Moreover a claim so com-
prehensive could ecarcely stand, in view of the prior state of the art.
Let a decree be drawn, dismissing the bill, with costs.
The Danieii Steinman.*
(Dtsiriet Court, E. D. New York. March 29, 1884.)
8a.lv AGE Sbkvice — AwARD — $2.^,000 Ai.i,owBD ON Valuation of ^252,500 —
Costs.
Tbe steamship Daniel Steinman, 1,790 tons, on a voyage from Antwerp to
New York, with gênerai cargo and 335 steerage passengera, lost lier propeller.
She set ail the sail shc could, but made no headway. The same day the steam-
ship B., of the White Star Une, bound from Liverpool to New York with cargo
and mails, and 697 passengers, came near, and the master of the S. applled to
her to be towed to Halifax, 280 miles distant. This the R. was not wllling to
do, but was willing to attempt to tow her to New York, 630 miles distant. An
agreement was made between the two masters, by which the R. was to receive
£10,000 if she brought the S. to New York, which she proceeded to do, being
detained some two days, of which 36 hours were occupied in towing, and bring-
ing the 8. to New York by the time the 8. was due there. No damage of consé-
quence was sustained by either, beyond the breaking of a hawser belonging to
the K. The weather was fair and the sea smooth during ail the time. The
value of the 8., cargo and freight, was $252,500; that of the R., cargo and
freight, was $780,000. The owners of tlie S. were not satistied to pay the
1 Reported by K. D. i Wyllys Benedict, of the New York bar.
THE DANIEL 'STEINM AN. 919;
ilO,000, but oflered $7,500 ; the owners of the K. did not insist on the agree-
ment, but considered $25,000 net to be their praper reward. Hdd, that an
important salvage service was rendered by the 11. in rescuing the 8. and her
passengers frora a position of danger, and enabling her to leach her port of
destination without Inss of timc, for whicli the R. should receive a salvage
compensation of $25.000. Expenditurea of the R., amounting to $2,800, were
not allowed in addition, as thèse were taken into considération in tixing the
award; but it was directed that the owners be reimbursed oui of the gross
amount before its distribution. As no tender was made, costs were allowed
libelants. Particular coraparison of this case with the circumstances and the
award of the English court in the case of Tlie Sileùa and The Vaderland, L. K.
- 6 Prob. Div. X77.
In Admiralty.
McDaniel, Wheeler d Souther, for libelants.
Jas. K. mil, Wing é Shoudy, for claimanta.
Benbdict, J. This action is to recover salvage compensation for
services rendered by the steam-ship Republic to the steam-ship Daniel
Steinman. In June, 1882, the steam-ship Daniel Steinman, while
prosecuting a regular trip from Antwerp to New York, while in lati-
tude 41 deg. 12 min., longitude 58 deg. 60 min., loSt her propeller.
Owing, as is supposed, to striking something in the water, the pro-
peller shaft broke off just outside the hnll, and the propeller dropped
into the sea without injury being done to her hull. She was a steamer
of 1,790 tons burden, built full forward. She had two masts, and
was able to spread about 1,200 yards of canvas, which is not more
than one-third the ordinary amount of canvas spread by a sailing
vessel of equal size. Her crew consisted of fourteen men ail told, so
that with one man at the wheel and one man on the lookout she had
only a boatswain and two seamen in each watch to handle the sails.
She had a gênerai cargo and 335 steerage passengers. Her provis-
ions were suâicient for about four weeks. Upon losing her propeller
she set ail sail, but made no hèadway. Towards night of the same
day the steam-ship Eepublic, bound from Liverpool to New York, was
discovered approaching. When she came near, the chief ofiScer and
af terwards the master of the Daniel Steinman boarded her, and applied
to be towed to Halifax, then some 280 miles distant to the northward.
The master of the Eepublic was not willing to go to Halifax with the
steamer, but was willing to attempt to tow her to New York. After
some negotiation a written agreement was signed by the masters of the
two steamers, whereby the Eepublic was to take the disabled steamer
in tow, and in case she was brought to New York in safety the Eepub-
lic was to receive ^£10,000 for the service. The agreement, however,
contained a provision that in case the amount of £10,000 proved un-
satisfaetoiy to the owners of either vessel the case should be sent
for settlement to the court of admiralty in Lond6n. Thereafter, and
at about 9 p. m., the Eepublic began to tow the steamer towards
New York. The weather continued fine, and although the Steinman
steered badly the Eepublic took her along so fast that she was safely
moored in the port of New York by the time she was therQ due, and
920 rjîDBrvL «epobtes.
tkua lost no time by the disaster. The Eepublîo was detaîned some
two days, thirty-six hours having been oceupied in towing. No dam-
age of any conséquence was sustained by either vessel beyond the
breaking of a hawser belonging to the Eepublic. A différence then
arose in regard to the compensation to be paid the Eepublic for this
service. The owners of the Daniel Steinman were not satisfied to
pay the iîlO.OOO named in the agreement made by the masters, and
consider $7,500 a sufficient compensation. The owners of the Ee-
public do not insist upon the agreement, and consider $25,000 net
to be their proper reward.
Upon a fuU considération of ail the circurastances, I am of the
opinion that an important salvage service was rendered by the Ee-
public to the Steinman on the occasion in question, for which the
Eepublic should receive a salvage compensation of $25,000. In
reaching this conclusion I hâve taken into view the fact that a dis-
abled steamer, having on board 335 passengers, was by the efforts
of the Eepublic rescued from a position of danger, and enabled to
make her port of destination without loss of time. It is no doubt
true that the Steinman could bave turned back, and by means of
sails bave regained her port of departure without assistance ; and, un-
less the winds were unusually adverse, she could hâve done this be-
fore her provisions would bave given out. But such a course would
hâve been attended with some risk, and would bave involved a large
loss of money to her owners, besides the loss and suffering entailed
upon the 335 passengers. It is probable, also, that the Steinman
could hâve reached Halifax by means of her sails without assistance.
This course would bave subjected her owners to a large loss, and her
passengers to no small loss and suffering, and it would hâve been at-
tended with a very considérable risk. The coast of Nova Scotia is none
too safe a place for steamers well equipped, and a disabled steamer
cannot approach it without danger.' It is possible, also, that the Stein-
man might, by means of her sails, bave reached New York, then 630
miles distant to westward, although upon this point the testimony
discioses two opinions. With the wind as it was when she was taken
in tow, the Steinman would never hâve reached New York. With
the wind as she had it until her arrivai in New York, she would never
bave reached New York. With some winds, she would bave reached
New York in the course of three or four weeks ; but I recall no instance
of a steamer situated as she was, and of her size and rig, making
600 miles to westward under sails alone. It seems, therefore, en-
tirely proper to conclude that the efforts of the Eepublic relieved the
Steinman from a position of danger. I bave also taken into consid-
ération the value of the property thus relieved, — the value of the
Daniel Steinman, her cargo and freight, amounting in ail to $252,500.
I bave also taken into considération the fact that although the mas-
^Five days after this opinion was handed down, tliis very steamer went ashore
on the coast of Nova Scotia, aud bei;ame a total wreck, witli a loss of 117 lives.
THE DANIEL STEINUAN. 921
ter of the Steinman, according to his statement, was of the opin-
ion that he was in the track of steamers, and could, therfifore, hâve
•waited to be assisted by some other steamer than the Eepublic, and
although he believed himself able to reach a port of safety mthout
assistance, still he applied for the services of the Eepublic. In ap-
plying to the Eepubhc he was calling no mean instrument of com-
merce to his aid. The Eepublic was a powerf ul steamer, able, loaded
as she was with passengers and freight, to tow the Steinman for 600
miles at as great a rate of speed as the Steinman could steam by her
own engines. She was one of the White Star steamers, running in a
line where regularity of arrivai and departure are considered of the
greatest importance. Thèse circumstances were known to the master
of the Steinman, and when, having the option to await the comingof
a différent vessel, he applied for the services of the Eepublic, it must
hâve been with the understanding that thèse circumstances would be
taken into account in fixing the compensation for those services.
This is shown by the fact tbat he was willing to submit to hisowners
for their considération the sum of £10,000, as he did by the agree-
ment. I hâve also considered the risk incurred by the Eepublic. It
is true that the weather was fair and the sea smooth during the whole
time that the Eepubhc had the Steinman in tow, but it is also true
that towing a disabled steamer of the size of the Steinman by a
steamer of the size of the Eepublic is always attended with danger.
In such a service care and watchfulness will not always prevent dis-
aster. Says Sir Eobebt Phillimore, in deciding the case of The
City of Chester, 26 Mitch. Mar. Eeg. 111 :
"It is well knowu, and the Elder Brethren say, that in ail thèse cases of
large steam-ships rendering service to eacli other there is very great danger,
and they will require skillf ul navigation to avoid it. "
It is a service not deemed désirable by owners of steamers, and the
increasing importance of encouraging it has called from this court
expressions which need not be repeated hère. The Edam, 13 Fed.
Eep. 135. In The Rio Lima, 24 Mitch. Mar. Eeg. 628, Sir Eobebt
Phillimore says :
"It has been impressed on the minds of the court that there seems to be a
growing dislike on the part of owners of ships to allow their vessels to render
assistance, even where no jeopardy of life is concerned. That must be met
by a libéral allowance on the part of the court whose dutyit is to consider ail
the circumstances of the case."
In this connection, the circumstance is worthy of attention that the
agreement made by the masters of thèse two steamers provided for a
submission of the case to an English court of admiralty in the event
that their owners should not feel satisfied with the sum mentioned in
the agreement. Such a provision can, of course, hâve no effect to ren-
der the décisions of the English admiralty authoritative hère, but it
may justify a somewhat particular comparison between the case at
bar and one heretofore determined by au English court, where the
922 FEDERAL BEPORTEB.
steam-ship Silesia, having broken her propeller shaft, was towed to a
port of safety by the steam-ship Yaderland. L. E. 5 Prob. Div. 177.
In that case, the salving vessel, the steam-ship Yaderland, was bound
from Antwerp to Philadelphia with gênerai cargo, 274 passengers,
and mails. In the présent case, the salving vessel was the steam-
ship Eepublic, bound from Liverpool to New York with cargo, 697
passengers, and mails, The Vaderland's crew numbered 76, the Ee-
public's, 185. The Vaderland's cargo and freight were valued at
£72,000. The Eepublic's cargo and freight are valued at $780,000.
The Silesia, towed by the Yaderland, was valued, cargo and freight, at
£108,000. The Steinman, towed by the Eepublic, is valued, with
cargo and freight, at $252,r)00. The Silesia was bound to Hamburg.
The Steinman was bound to New York. The Silesia was towed 340
miles by the Yaderland. The Stçinman was towed 630 miles by the
Eepublic. The time occupied in towing the Silesia was three days,
The time occupied in towing the Steinman was tbirty-six hours. The
Yaderland turned back from her voyago and went to Queenstown, ajid
her loss of time by performing the service was six days. The Eepub-
lic did not turn back, and by performing the service lost only two
days. In the case of The Silesia, the masters made an agreement
for a compensation of £15,000. In this case, the agreement provided
for £10,000. In the case of The Silesia, the English court of ad-
miralty awarded £7,000; and it would seem, from this comparison,
that the English court of admiralty, in a case like the présent, would
give no smaller reward than $25,000.
In view of the considérations I hâve now alluded to, it seems to me
proper to fix $25,000 as the proper salvage reward for the service in
question. I bave been urged in behalf of the libelant to allow, in
addition, the cost of the provisions for the passengers on the Eepub-
lic for two days, the cost of extra coal used, the cost of extra work,
and the injury to the hawser, amounting in ail, it is said, to $2,800.
Thèse expenditures I bave taken into considération in fixing the re-
ward at,,$25,000. That sum I consider to be suffieient without fur-
ther allowance; but, in the distribution of the salvage, the amount of
money expended by the owners in performing the service may be
shown, and they may be reimbursed for that expenditure out of the
gross reward before distribution. As no tender was made, the libel-
ants must recover their costs.
Let a decree be entered in accordance with this opinion.
THE liAHAINA. 923
The Lahaina.*
{District Court, E. T>. Nets York. March 15, 1884.)
Salvage— Amount — All thb Cargo and Half thk Vessel Allowbd.
The steam-ship C, valued at $180,000, the day af ter leaving New York, found
the schooner h. in the trough of the sea, withont steerage-way, a large hole in
lier side, and seriously dainaged f orward. The L, 'screw aunounced their inten-
tion to abandon her in case the C. declined to take her in totv The O. towed
the L. back to New York, losing thereby three days' time, brèaking & steel
hawser, and payiug pilotage and towage, amounting to $279. The sehooner
and ':argo were sold, the net prooceda being $3,514.25. The proof ghowed that
the cargo of the h., from its nature, would hâve been whoUy lost if the L. had
not been taken in tow by the C. No one appeared to cJaim the cargo. The
court allowed the wliole of the proceeds of the cargo — nota large sum — and
one-half the net proceeds of the vessei, to be paid the salvors for salvage, and,
in addition, the above expenses of the steamship and $200 for damages tb
hawsers, to be first deducted from the proceeds and aiso costs.
In Admiralty.
Jaa. K. mil, Wing é Shoudy, for libelants.
Goodrich, Deady é Platt, for claimants.
Bbnedict, J, This is an action for salvage services rendered by the
steam-ship Caledonia to the schooner Lahaina and her cargo. The
Caledonia was an iron steam-ship, engaged in the Mediterranean
trade, and bound from New York to Glasgow with a gênerai cargo,
including 300 cattle. The day after leaving New York, when Shin-
necock bore N. W. about 25 miles distant, she sighted the three-
masted schooner Lahaina flying a signal ckf distress. The schooner ,
was six to eight miles distant, some three points on the port bow.
The steamer bore away for the schooner, and, coming along-side, found
her in the trough of the sea, without steerage-way, a large hole in
her side, and seriously damaged forward. The crew of the schooner
asked to be taken to a harbor of safefcy, and announced their inten-
tion to abandon their vessel in case the steam-ship declined to take
her in tow. The master of the steam-ship concluded to endeavor to
take the schooner to New York, the nearest port of safety, and, hav-
ing made fast to her by a four-inch steel hawser, started back for his
port of departure. The swell was heavy, and the steel hawser parted.
Then a thirteen-inch hemp 'hawser was put on, which held. The
next morning they were oflf Sandy Hook, and that day the wreck
was left safe in harbor at New York. The steam-ship lost three
days' time, and she paid pilotage and tow-boat expenses amonnting to
|27&. The value of the steam-ship was $180,000. The schooner
and her cargo were sold in this proceeding, and the net proceeds,
after paying all expenses, amount to $3,614.25, The proof shows
that the cargo, from its nature, would hâve been whoUy lost if the
x\reck had not been taken in tow by the Caledonia, and it seems to
1 Reported by K, D. & Wyllys Benedict, of the New York bar.
924 FEDERi-Ii REPOETEB.
bave been supposed that, owing to the condition of the cargo, the
proceeds would barely equal the duties upon it and the expenses of its
sale. No one bas appeared to daim the cargo, although considérable
time has elapsed since the filing of the libel, and notice of the pro-
ceeding has been sent to the party in interest. So far as the cargo
is concerned, therefore, the proceeding is by default.
Under such circumstances, I am jiistified in allowing the whole of
the proceeds of the cargo in court, the same not amounting to a large
suœ, to be paid to the salvors, whose exertions saved the same from
certain loss. In regard to the schooner, where an appearance has
been entered for the owners, and they hâve been heard upon the
question of the amount of salvage proper to be allowed out of the
proceeds of the vessel, considering, in connection with the circum-
stances already mentioned, the small value of the property saved, the
value of the salving ship, and the fact that, had not the schooner
been taken in tow, she would hâve been abandoned, a water-logged
wreck, in the track of vessels bound to New York, I am of the opin-
ion that one-half the net proceeds of the schooner must be allowed to
the salvors for salvage. In addition, the expenses paid out by the
owners of the steam-ship, amounting to $279, and $200 for damages
to the hawsers are, however, to be first deducted and paid to them.
The libelants must also recover their costs.
The Belle of Oeegon.*
{District Court, E. D. New York. March 8, 1884.)
BbAMEN — CONTRACT TO BbND ThBM HoME — DAMAGES— MlTIGATION.
Where natives of the PhiUppine islands shipped as seaman on an American
vessel at Iloilo for a voyage to New York, and the master bound himself to re-
turn them to then- countrj' at his expense, and the men left the vessel at New
Yorkwithoul objection, no provision being made for their remainlng on board,
and afterwards the master offered to the boarding-house man at wlMse house
the men were that the men should retnrn to the vessel and go in her to Port-
land, Oregon, held, that on the proof the men did not désert the vessel at New
York, and were not bound to remain on board her ; that under the agreement
the men were to be sent home direct, and not by way of Oregon, and that no
ofler had been shown to send them home, even via Oregon ; that there had
been, therefore, a violation of the contract on the part of the vessel, and the
vessel was liable for the damages that the libelants might hâve sustained, to be
ascertained by a référence. As a matter of protection to the foreign aailors,
thfi vessel was allowed now to provide them with a passage home, and to show
this in mitigation of damages.
In Admiralty.
Beehe & Wilcox, for libelants.
W. FI. Fieid, for claimant.
iReported by R. D. & Wyllys Benedict, of the New York bar.
THE BELLE OF OBEOON. 925
Benbdict, J. On the twenty-seventh of August, 1883, at Iloilo in
the Philippine islands, the libelants, "natives of thèse islands,"
shipped as seamen on board the American bark Belle of Oregon.
A written agreement was entered into with them, in which, among
other things, it was provided that "the contract of the sailors afore-
said is only for the voyage from this port to the port of New York;"
and it was also provided that the master "further binds himself to
retum at his expense to their country the said sailors." Thereafter the
bark prooeeded to New York, and there safely arrived, the libelants
having duly performed their duty during the voyage. After the ves-
sel was in her berth, and the decks cleared up, ail the crew left the
vessel, including the libelants. No objection was made to the libel-
ants leaving the vessel, nor was there any provision made for their
remaining on board, or their return to their country. After some
days it would seem that the master was willing that the men should
retum to the bark and was willing to take them in the bark to Port-
land, Oregon, to which port the bark was about to proceed from New
York. It is not proved that this offer was brought home to the sail-
ors, it apparently having been considered by the ship sufficient, as
decidedly it was not, to make the offer to the boarding-house man, at
whose house the men are boarding.
On the part of the ship it is contended that the men deserted in
New York, and a consul's certificate to that eflfect is produced. But
the proof is beyond dispute that the men left the bark without objec-
tion, if not by the direction of the master. Besides, théy had the
right to leave the ship when they did, for the voyage was ended.
The covenant on the part of the master to return them to their coun-
try did not bind them to remain on board the vessel after the com-
pletion of the voyage.
Next, it is contended that the men bave had the opportunity to re-
turn to their country in the same vessel, and bave refused to do so.
This défense is not proved. At the most, ail that has been done is
to offer to take the men in the bark to Portland, Oregon, whither, as
it appears, the vessel proceeds from New York. The contract, as I
incline to think, is a contract to send the men from New York to the
Philippine islands direct ,* and an offer to take the men to the Philip-
pine islands, via Portland, Oregon, would not, therefore, be a fulfill-
ment of the agreement. The case contains nothing from which it can
be inferred that any other voyage was contemplated at the time of
hiring than a voyage from Iloilo to New York, and thence back di-
rect. But if this be çtherwise, and a voyage home by the way of
Oregon be held to be within the meaning of the contract, then it is
to be said that no offer to send the men home via Portland has been
shown. There is no évidence that the bark intends to proceed from
Oregon to the Philippine islands. Ail the offer made was to give the
men a passage in the bark from New York to Oregon, with the chance
of a passage thence to their country. Such an offer was no tender of
926 _ FEDERAL EEPOKTEa
performance of the contraot. The men are not bound to go to Ore-
gon, and take the chance of being left there if the bark should go
elsewbere than to the PhiHppine Islande, as, foir aught that appears,
she will do. No other conclusicn is therefore possible, upon this évi-
dence, than that a Yiolation of the eontract on the part of the bark
has been shown, becaxiae of the failure to provide the libelants with
a passage to their native country, from which arises a liability to pay
any damages that the libelants may hâve sustained thereby. What
the amount of that damage is may be asoertained by a référence.
But, as a matter of protection to to thèse foreign sailora, I will allow
the ship, if it be so desired in her behalf, now to provide the men
with a passage to the Philippine islands, and to show sueh provision
made in mitigation of damages.
The , Eheola.
CouGHLiN V. The Kkeola and another.
(Circuit Court, S. D. New York. April 12, 1884.)
Négligence— Privity of Cont^act— Responsibilitt.
A Btevedore employed by anolher, who has oontracted to unload a vessel,
can recover for injuriea sustaiued by the defeetive appliancea furnished him
by the vessel, upon the same évidence wliich would enabie his employer to re-
cover. Though there is no prlvity of contraot between the ship-owners and
him, they were iinder the same obligation to him as tbey wero to his employer.
What would be négligence to one would be négligence to the other.
In Admiralty.
Beehe, Wilcox é Hohhs, for libelant.
W. W. Goodrich, for claimants.
Wallaoe, J. The libelant has appealed from a decree of the dis-
trict court for the Southern district of New ïork dismissing the libel.
The suit is in rem, and is brought to recover for personal injuries sus-
tained by the libelant while unloading the Eheola, in July, 1879,
when she was discharging cargo along-side a pier in the port of New
York. The libelant was one of a number of laborers employed by
one Hogan, a master stevedore, to discharge cargo, which oonsisted
of tin in cases and iron ore in bulk. He and others, in ail a gang of
six men, were in the lower hold of the ship, fUling the hoisting tubs
with iron. He had hooked one of the tubs to the chain, and was in
the act of fiUing another, when the chain broke while the tub was
suspsnded over the hatchway, and the tub fell upon him. Three
tubs were being used, and the work was done rapidly. The chain
and hoisting apparatus were furnished by the steamer, under the bar-
gain with the stevedore.
THE BHEOLA.
927
It is not Buggésted that the suit is not properly brought in rem, if
the master, while acting within the scope of the authority conferred
upon him by the owners, in the management of the vessel, was guilty
of négligence towards the libelant. Négligence, when committed
upon navigable waters, is a maritime tort whieh subjects the vessel
to liability to an extent coïncident with the liability of the owner.
Com'rs V. Lucas, 93 U. S. 108. If the relations of the master of the
steamer towards the libelant were such as to create a duty not to be
négligent, the latter is entitled to recover if there was a breach of
that duty. ^ Sherlock v. Alling, 93 U. S. 99.
The learned judge in the court below was of the opinion that, as
there was no privityof contract between the libelant and the owners
of the steamer, they were not liable unless the thing by whioh he was
injured was imminently dangerous ; but he was also of opinion that
if the degree of négligence which -ffifould make an employer liable to
bis employé were enough, such négligence was not established by the
proofs. As the libelant was not directly employed by the master,
and could onlylook to the master stevedore for bis pay, there was no
privity of contract between him and the ship-owners. Nor did the
relation of master and servant, in its technical sensé, exist between
the libelant and the ship-owner. But it is conceived that this does
not in the least affect the obligation of the master not to be négli-
gent towards the libelant, or the degree of oare which it was incum-
bent upon him to exercise. The libelant was performing a service
in which the ship-owners had an interest, and which they contem-
plated would be perf ormed by the use of appliances which they had
agreed to provide. They were under the same obligation to hini not to
expose him to unnecessary danger, that they were under to the master
stevedore, bis employer. There was no express contract obligation on
their part to either to provide safe and suitable appliances, but f'.jy
were under an implied duty to each ; and the measure of the duty to-
wards each was the same. What would be négligence towards one
would be towards the other. Coughtry v. Olobe Co. 56 N. Y. 124;
Mulchey v. Methodist Society, 125 Mass. 487. The implied obligation
on the part of one who is to provide machinery or means by which a
given service is to be performed by another, is to use proper care and
diligence to see that such instrumentalities are safe and suitable for
the purpose. "It is the duty of an employer inviting employés to
use bis structures and machinery, to use proper care and diligence
to make such structures and machinery fit for use." Whart. Neg. §
211. If he knows, or by the use of due care might hâve known, that
they were insufficient, he fails in bis duty. This doctrine is cited
,with approval in Hough v. Ry. Co, 100 U. S. 220. Due care or or-
dinary care implies the use of such vigilance as is proportional to the
danger to be avoided, judged by the standard of common prudence
and expérience. Applying this test hère, where, if the appliances to
be used were defective, serious casualties were to be apprehended, it
928 FEDEBAIj EEPOBTBa.
I
■vras the duty of the master of the steamer to exercise a correspond-
ing vigilance to provide against them.
The proofs show that the average weight of the tubs which were
being hoisted out of the hold was about 1,800 pounds; that on the
day before one of the chains of the steamer, which was being used in
the same work, broke ; that both of thèse chains had been in use about
two years ; that the one that broke first had been used more than the
other; and that such chains, when in proper condition, were sufiS-
ciently strong to sustain a hoisting weight of six or seven tons. Con-
cededly the chain was defective, as it broke with a weight of 1,800
pounds, after it had only been used to hoist four or five tubs. It was
rusted, and considerably worn in appearance. The breaking of the
other chain was a circumstance to attract attention, and put the mas-
ter of the steamer on inquiry. Under thèse oircumstances it must be
held that the casual examination of the chain which was given to it
while it was being brought from the other hatoh was not sufficient to
exonerate the master from the charge of négligence. Before he per-
mitted it to be employed in a use which was so hazardous to those
who were to use it, he should hâve made a careful and thorough test
or examination. Ânything less than this was a failure to observe
proper care.
The proofs do not justify the infei:ence that the libelant was nég-
ligent. If he had had any reason to anticipate the accident he could
undoubtedly hâve escaped; but this may be said in almost every con-
ceivable case where an accident bas happened. It was not indis-
pensable for him to remain exposed under the hatchway while actu-
ally fiUing the tubs, but part of the time he and the other laborers
were necessarily there, because they had to unhook the empty tubs,
hook on the full ones, and steady them until they were hauled out of
the hold. The work was being done with great dispatch; there were
six men doing it, and a limited place in which to do it; the tubs,
while being fiUed, stood near the hatchway and part of the time un-
der it; and under ail the circumstanoes it would seem that the libel-
ant was as careful as in the hurry and excitement of the occasion
could be reasonably expected of him, and should not be deemed in
fault.
The proofs show that while the libelant sustained painful injuries
they were not of a permanent charaeter, nor did they ineapacitate
him long from doing his ordinary work. A decree for |760 will be
a fair compensation to him, and is accordingly ordered.
End of Volume 19.
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