source: Caselaw Access Project

author: HOUGH, Circuit Judge

license: Public Domain

text:
    CASTNER, CURRAN & BULLITT, Inc., v. UNITED STATES.
    (Circuit Court of Appeals, Second Circuit.
    February 2, 1925.)
    No. 196.
    1. Salvage <@=48 — Respondent’s affidavit as to indebtedness of charterer to respondent, erroneously considered.
    In libel by owner of vessel for salvage, in which there was no proceeding before a commissioner to assess damages or estimate an award, and in which the value of the service had been agreed on, there was nothing left for the court to do but to allocate the shares, of the various parties entitled, all of whom were represented by libelant, and it was error for court to consider affidavit setting forth indebtedness of charterer of libelant’s vessel to respondent, since such affidavit was not a pleading and was not entitled to consideration as evidence.
    2. Admiralty <@=36— Government as respondent in libel for salvage could: not counterclaim for breach of other contract or for taxes.
    In libel under the Suits in Admiralty Act (Comp. St. Ann. Supp. 1923, §§ 1251%-1251%!) against the United States as owner of vessel for salvage, the government could not counterclaim for breach of other contract or for taxes, since in admiralty counterclaim must arise out. of same contract or cause of action for which original libel was filed under Admiralty Rule No. 50.
    3. Salvage <@=l — “Salvage” defined.
    “Salvage,” in its simple character, is the service which those who recover property from loss or danger at sea render to the owners of that property.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Salvage.]
    4. Salvage <@=38 — Charterer a joint adventur- , er with o.wner in respect to salvage services performed by chartered ship, where rights aro defined by agreement.
    Where charterer’s rights as to salvage are defined by agreement between the parties, the charterer cannot rise to a higher position than, that of being a joint adventurer with owner in respect of salvage services performed by-chartered ship.
    5. Salvage <@=38 — Entry of decree in libel for salvage by -owner on behalf of other persons, as if they were p'rosecutipg claims independently, held .error.
    Where agreement between owner and charterer provides that salvage is to be for the parties’ “equal account,” and that “settlement of same to be arranged for by owner,” it was-error for court, in libel by owner on behalf of all other persons interested, to enter decree as if officers and crew, owner, and charterer were each prosecuting their claims independently.
    6. Salvage <@=46 — Owner may bring proceeding in own name on behalf of other persons interested in salvage recovery.
    Owner may bring libel under Suits in Admiralty Act (Oomp. St. Ann. Supp. 1923, §§< 1251% — 1251%!) for salvage in own name on. behalf of all other 'persons interested in salvage recovery, especially where charter party provided for settlement of salvage by owner.
    7. Salvage <@=38 — Owner and charterer may adjust rights in salvage recovery by execution of off-hire certificate.
    Owner and charterer 'may adjust rights in salvage recovery by owner’s execution to-charterer of off-hire certificate without objection thereto from owner of ship liable for the salvage. <
    8. Salvage <@=43 — Respondent not entitled to turn amount of salvage into court,
    "In libel under the Suits in Admiralty Act (Comp. St. Ann. Supp. 1923, §§ 1251%-1251%!) by owner for salvage in own name on behalf of other persons interested in salvage-recovery, respondent was not entitled to turn amount of debt into coffers of court and leave-creditors subject to expense and delay of getting it out of court, rather than from reputable proctors of their own choosing.
    Appeals from the District Court of the-United States for the Southern District of' New York.
    Libel by Castner, Curran & Bullitt, Inc., against the United States. From the decree-rendered, both parties appeal.
    Decree modified.

      This is a proceeding under the Suits in Admiralty Act (Comp. St. Ann. Supp. 1923, §§ 125114-1251140, in which libelant elected to “proceed in accordance with the principles of libels in rem.” Section 3 (section 125iy4b).
    The suit therefore is to be regarded, so far as its legal rules' are concerned, as one in which the libelant sues as owner of steamship Glen White and the United States appears as the owner of steamship Wathena. The cause of action is for salvage, of a very meritorious nature. Wathena, while at sea, broke down by losing two blades of her propeller and breaking off the lower pintle of her rudder. She sent out radio messages for assistance, requesting a tow, and the Glen White aided her. The latter vessel deviated from her course in order to render assistance, took Wathena in tow, after some delay owing to the weather, and spent eight days and some hours in successfully towing the injured vessel to the Azores.
    At the time of service rendered, the Glen White was under a time charter to Burtner Coal Company, and by that instrument it was provided that charter hire should be paid in advance, and also “that all derelicts and salvage shall be for owner’s and charterer’s equal account, including expenses incident thereto, and settlement of same shall be arranged for by owners.”
    This libel was filed by Castner, Curran & Bullitt, Inc., as owner of the Glen White, and no other libelant. Nor did'any person attempt at any time to intervene pro interesse suo, but the owner sued as is specifically declared in the libel, not only on its own behalf but on behalf of Burtner Coal Company and of the officers and crew of the Glen White.
    The United States never answered herein, but it did execute a stipulation agreeing that the “reasonable value of the, salvage service rendered” was $42,500.
    The stipulation further agreed that the libelant was actually out of pocket for coal, provisions, etc., by reason of rendering the salvage services aforesaid, to the amount of $8,596.15. Also, that the value of Glen White’s time expended in the salvage service was $22,520.50. That is, the charter hire was accepted as a fair measure of time value.
    Finally, it was stipulated that the libelant as owner of Glen White has “allowed to the charterer an off-hire credit” for the time devoted to the salvage service, and that the statements of the libel were true.
    On this libel and stipulation libelant moved for final decree, whereupon the United States filed the affidavit of an official to the effect that the charterer, Burtner Company, was indebted to the government for damages for breach of contract and for taxes in a sum greatly exceeding the salvage award. To this affidavit libelant duly objected, but the Court accepted it, and entered decree awarding to libelant:
    (1) Its out of pocket expenses......$ 8,596.15
    (2) “Salvage money” (so called in decree) .............. 1,453.75
    (3) The crew’s share of award..... 8,475.96
    Total ........................$18,525.86
    Decree says nothing at all about the balance of the $42,500, but it is ascertainable from other sources that the intent was to leave it with the United States because the charterer owed the government so much.
    Finally, decree impounds the officers and crew’s share in the registry of the court, there to remain until they severally appear and on notice to the United States attorney elaim their several shares.
    From this deeree the government appealed because libelant got anything except $1,453.-75, and libelant appealed because the entire sum had not been awarded to it.
    William Hayward, U. S. Atty., and Glen R. Snider and Horace T. Atkins, Sp. Asst. U. S. Attys., all of New York City.
    Kirlin, Woolsey, Campbell, Hiekox & Keating, of New York City (Edwin S. Murphy, Ira A. Campbell, and L. de Grove Potter, all of New York City, of counsel), for libelant.
    Before HOUGH, MANTON, and HAND, Circuit Judges.
   HOUGH, Circuit Judge

(after stating the facts as above). It was pointed out in United States v. Cornell Steamboat Co., 202 U. S. 184, 26 S. Ct. 648, 50 L. Ed. 987, that a claim for salvage of government property did not arise upon contract, and yet was one that would be entitled to redress in the admiralty court if the United States were sua-ble therein.

The injustice thus recognized has been partially remedied by the Suits in Admiralty Act; wherefore the decree below having been vacated by the appeal (The John Twohy, 255 U. S. 77, 41 S. Ct. 251, 65 L. Ed. 511), we consider this record exactly as if the Wa-thena had been seized under process in rem, and the United States had in the ordinary way claimed her.

We first observe that the court below erroneously received and considered the af-fidavit setting forth the indebtedness to the government of the Burtner Company. That affidavit was not a pleading, nor was it entitled to be considered as evidence. There was no proceeding before a commissioner to assess damages or estimate an award; the value of the service had been agreed upon, and there was nothing left for the court to do except to allocate the shares of the various parties entitled, all of whom were represented by the libelant.

Without this affidavit there is nothing in the record to suggest the United States as having any standing herein except to pay what was admittedly due to somebody, and to make such payments in manner and form as the court might decree; its only interest in that decree was to see that it was drawn so that payment would extinguish all and every part of the demand set forth in the libel.

But if this procedural error be overlooked, the government could not in any way successfully counterclaim for breach of another contract or for taxes against any libel-ant suing for a salvage award; and this because in the admiralty there can be no such thing as a counterclaim unless it arises “out of the same contract or eause of action for which the original libel was filed.” Admiralty Rule 50; United Co. v. New York Line, 185 F. 386, 107 C. C. A. 442.

The matter at bar is not unimportant, because the decree below and the argument here for the United States seem to show a quite complete lack of appreciation of the inherent nature of salvage and of a suit for an award.

Without going into the refinements which have arisen in a world whose increasing complexity has affected shipping, “salvage in its simple character is the service which those who recover property from loss or danger at sea render to the owners” of that property. This and many other definitions of salvage are collected approvingly in Cope v. Vallette Drydoek, 119 U. S. 625, 7 S. Ct. 336, 30 L. Ed. 501; and in all the definitions and inherent in the nature of the act is the idea of service.

How peculiarly the service of salvage is personal, and how peculiar it is, has never been better illustrated than by the fact that seamen who were slaves, who labored with and on their ship to render salvage, were held, notwithstanding their slavery, entitled “to receive their portion of salvage as mariners for their own separate use.” Small v. The Messenger, Fed. Cas. No. 12961, 2 Pet. Adm. 284.

Thus carefully has the mariner’s share of the salvage award been preserved in the admiralty courts, because it is a reward for peculiar and personal services. Yet the main service — since no number of mariners could in the ordinary case be of assistance were-it not for their ship — is rendered, and must always be rendered, by the owner’s ship. Therefore in the main, and in the majority of cases of which this is one, the foundation on which the suit rests is the service rendered by the libelant-owner’s ship.

It follows that when investigating the parties to such a eause, the leading inquiry is-whose was the ship that rendered the salvage service? For tbe owner of that ship is the-person normally entitled to sue. Such owner may be one pro hae vice, but that point is not here present; for though the Glen White was under time charter, it was one of the ordinary kind and did not constitute-a demise of the vessel nor make the charterer (Burtner Company) owner pro hac vice. Clyde Co. v. West India Co., 169 F. 275, 94 C. C. A. 551.

It follows that the rights of Burtner Company as charterer arise solely out of a contract contained in the charter party. They-are derivative rights, derived from the owner’s right to be compensated for the service-of his ship.

Doubtless under-many circumstances a charterer is equitably entitled to some share-in the owner’s salvage award, absente any express contract, of which an instance is The Arizonan, 144 F. 81, 75 C. C. A. 239. But when -defined by agreement inter partes the charterer can never rise to a higher position than that of being a joint adventurer with the owner in respect of salvage services performed by the chartered ship. The Kanawha, 254 F. 762, 166 C. C. A. 208.

There is here such an agreement between owner and charterer, and it is observable that by the terms thereof salvage is to be for the-parties’ “equal account,” but that “settlement of same to be arranged for by owner.”-

In this state of law, and under the-foregoing agreement between owner and charterer, the decree below has been entered as if the officers and crew of the Glen White, the owner of that steamer, and the charterer-thereof were each prosecuting their claims independently under the libel filed. This we think a wholly erroneous view to take of the situation.

The Suits in Admiralty Act contemplates, as we have now fully pointed out, an. ordinary suit in admiralty for salvage. Such a suit is ordinarily properly and fully, according to the course and practice of admiralty, brought by the owner, who may, as-he has done here, sue in its own name on behalf of all the other persons interested in the salvage recovery. The Flottbek, 118 F. 954, 55 C. C. A. 448. Even if the libel-ant had not in terms sued on behalf of the crew, it is understood that the court will intervene in behalf of those wards of the admiralty. They may appear separately, like any other person, pro inter esse suo; but their omission from the libel would not even have been good ground for exception. The Camanche, 8 Wall. 448, at 476, 19 L. Ed. 397. So far as charterers are concerned, the very provision of the charter party above quoted empowered, if it did not require, the owner to proceed to recover that salvage for common account, and on recovery the “settlement of same (would be) arranged for by owner.”

Thus in this ease every party having any interest in the award was present and presented to- the court, but properly and lawfully so presented by and through the owner, who was the single libelant.

If any of these parties in interest had refused to proceed, it is true that such refusal would have inured to the benefit of the owners of the salved property (The Blackwell, 10 Wall. 1, 19 L. Ed. 870); but there is no such refusal. The respondent had no one else to deal with but the owner, and what the owner would do with or about the division of the award was no business of respondent; the government would get an acquittance, and that was enough.

The application to the court for allocation of award was between the court and the libelant, and merely to secure libelant from future demands for an accounting at the hands of those whom it represented. But inasmuch as this appeal relates to the form of the decree, we must consider the rights of the parties libelant among themselves.

Castner gave Burtner an “off-hire” certificate covering the period of salvage service. The charter terms of hire are that it was to begin on delivery of ship, was to be paid monthly in advance, and' should a monthly pay day occur when the vessel was on her voyage to the port of redelivery, an estimated payment should be made, and when delivery accomplished “any difference shall be refunded by steamer or paid by charterers as the case may require.” In other words, hire was to be finally adjusted between the parties as of the redelivery date.

Under such a bargain, the off-hire certificate necessarily operated as a grant or extinguishment of just so much charter hire; on redelivery the owners could claim and charterers would pay just so much less money and the owner would be “out” just that much hire. This was a fair bargain; no reason appears why charterers should object, for it saved them that much present cash, while the snail-like course of this suit (now nearly five years old) has- shown (what experience would have forecast) how much better was an off-hire allowance in hand than was a claim for reimbursement in salvage against the United States. But the overwhelmingly important thing is that the parties agreed on this arrangement of their own affairs under their own contract; so that when they all went to court the expense of the ship while salving lay solely on thé shoulders of this libelant — no one else was out a farthing.

It is not legally open to any respondent to quarrel with this adjustment of rights inter sese; still less is such a course open to one who did not and could not advance a counterclaim.

The disposition made below of the award to the crew is unusual and irregular. We have pointed out the right of the owner to sue on behalf of the crew; we have indicated the right of the crew if they desired to intervene with independent representation; no such intervention has taken place; the proctors for the owners are the proctors for the crew, in legal effect chosen by the crew. Yet these proctors are forbidden the rights of proctors from time immemorial, are required to furnish a list of what their clients are entitled to, and then left to see their own clients put to expense and difficulty of getting what they can out of the court registry on notice to the United States attorney, who is the proctor for the respondent.

This is the vice of the proceeding: the United States owes this money to the crew, and it has no right in an admiralty suit to turn the amount of its debt into the coffers of the court and leave its creditors subject to the expense and delay of getting it out of the court rather than from reputable proctors of their own choosing.

Let the decree below be modified so as to declare the allocation of the award as follows:

To the libelant for expenses of salvage, including the value of the use of the ship.....................$31,116.65

To the libelant for distribution in proportion to their several wages, to and among the crew as set forth in the libel...................... 8,475.96

To the libelant to be by it accounted for with the charterer pursuant to the provisions of the charter party 2,907.49


text:
    ATLANTIC FRUIT CO. v. RED CROSS LINE.
    (Circuit Court of Appeals, Second Circuit.
    December 8, 1924.)
    No. 103.
    1. Evidence <@=43(4)— Circuit Court of Appeals may take cognizance of opinions of other courts, and examine records to ascertain grounds.
    The Circuit Court of Appeals may take cognizance without plea dr proof of the judicial opinions of federal and state courts, and may examine record to ascertain grounds on which opinion is based, but need not accept, as proved, facts so regarded by court in writing opinion.
    2. Admiralty <@=26 — Remedy offered by admiralty for settlement of disputes under charter party not affected by state Arbitration Law.
    Arbitration Law of New York, though affording a remedy in respect of charter party, has no effect on whatever remedy admiralty offers for settlement of disputes arising under same charter party.
    3. Shipping <@=39 — Noncompliance with agreement fo:r arbitration did not bar admiralty suit for charter hire and expenses.
    Noneompliance with agreement in charter party to arbitrate disputes arising under charter party was not bar to suit in admiralty for nonpayment of charter hire and expenses.
    Appeal from the District Court of the United States for the Southern District of New York.
    Libel by the Atlantic Fruit Company against the Red Cross Line. Decree for li-belant (276 F. 319), and respondent appeals.
    Affirmed.
    Libel herein was filed June 4, 1920. It is a very simple claim for nonpayment of charter hire and expenses. Answer was filed in the following November and three defenses set up:
    (1) Denial of certain material allegations of the libel.
    (2) The fact that the charter party sued on contained the common agreement that: “Should any dispute arise between owners and charterers, the matters in dispute shall be referred to three persons in New York, one to be appointed by each of the parties herein and the third by the two so chosen; their decision or that of any two of them shall be final, and for the purpose of enforcing any award this agreement may be made a rule of court.”
    . Further, that the matter in suit was a dispute between owner and charterer and that respondent (charterer) had been at all times willing to arbitrate and had named an arbitrator, but that libelant had refused to proceed with the arbitration.
    (3) That the master of the chartered steamer had failed to comply withj the charter party provision that the voyage should .be prosecuted with the utmost des-patch, but had, on the contrary, delayed his voyage to the damage of respondent in a sum far greater than the amount of hire, etc., sued for by libelant.
    To the second defense libelant promptly excepted, the exception was sustained, and the defense stricken out by interlocutory order entered I4th October, 1921, by Mack, J., whose opinion is reported in (D. C.) 276 F. 319. The cause then proceeded to trial, respondent did not make good its third defense, and final decree in favor of libelant was entered in January, 1924, substantially for the sum demanded in the libel.
    From this decree respondent appealed, assigning for error substantially the action below in sustaining exception to the second defense.
    The foregoing covers all the material contents of the apostles. This court, however, is called on to take cognizance of the decision of the Supreme Court of the United States in Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 44 S. Ct. 274, 68 L. Ed. 582, and it is asserted by appellant that such cognizance requires not only notice of the propositions of law decided in the reported case, but knowledge of such facts as were laid before the Supreme Court by its transcript of record therein.
    An examination of that transcript shows after the institution of this suit, and in April, 1921, respondent herein moved in the Supreme Court of the State of New York, County of New York, for an order pursuant to the Arbitration Law of New York (chapter 275 of 1920, and chapter 14 of 1921 [Consol. Laws, e. 72]), requiring Atlantic Fruit Company, (libelant herein) to “proceed to arbitration as provided for in the (charter party), and appoint its arbitrator on or before” a certain day in August, 1921.
    From an order accordingly Atlantic Fruit Company appealed to the appropriate Appellate Division of the New York Supreme Court (Matter of Red Cross Line, 199 App. Div. 961, 191 N. Y. S. 949); that court affirmed the order, whereupon further appeal was taken to the Court of Appeals of New York, which reversed it (233 N. Y. 373, 135 N. E. 821).
    Certiorari was granted, and the Supreme Court of the United States reversed the order entered pursuant to the remittitur of the Court of Appeals of New York and reinstated the original order directing the arbitration to proceed. The final order on the mandate of the Supreme Court of the United States was entered April 2, 1924, i. e., about a month after the appeal at bar had been taken.
    It thus appears that there was what each party regarded as a dispute under this charter party. To settle that dispute the owner first began this suit. The charterer set up the arbitration clause as a defense, but did not until several months after it had answered herein attempt to enforce arbitration by means of the New York statute. The court below refused to consider the pleading good, and while this ease was standing for trial the charterer began proceedings under the New York statute, and since that time, in April, 1921, these two matters have both been going on in the manner above shown, until at the present time there is a final order in the New York court requiring arbitration to proceed, apparently about a matter as to which there is a final decree in the United States District Court based upon pleadings which (excluding the second defense, supra) embrace the whole matter in controversy.
    The explanation of charterer’s delay in applying for arbitration under the New York statute is that the charter party herein is a contract dated November 28, 1919, or before the passage of the New York Arbitration Law, and it was the holding of the New York courts prior to decision in Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 130 N. E. 288, that the statute did not apply to contracts made prior to its enactment. The Berkovitz Case (decided March 1, 1921) settled the matter the other way, and thereupon and in the following month this charterer-respondent began at the Special Term of the New York Supreme Court its proceeding for arbitration, which terminated in the Supreme Court of the United States on February 18, 1924, in Red Cross Line v. Atlantic Fruit Co., supra.
    Loomis & Ruebush, of New York City (Homer L. Loomis and Reginald B. Williams, both of New York City, of counsel), for appellant.
    Hunt, Hill & Betts, of New York City (John W. Crandall and Edna Rapallo, both of New York City, of counsel), for appellee.
    Before ROGERS, HOUGH, and MANTON, Circuit Judges.
   HOUGH, Circuit Judge

(after stating the facts as above). That we may take cognizance without plea or proof of the judicial opinions of any state in the Union is undoubted (Vagaszki v. Consolidation Coal Co., 225 F. 913, 141 C. C. A. 37), and a fortiori is this true of the opinions of United States courts. How far this notice of opinions permits the investigation of the record that produced the opinion is a subject not free from doubt. Eyster v. Gaff, 91 U. S. 521, 23 L. Ed. 403; Re Manderson, 51 F. 501, 2 C. C. A. 490. We think it clear, however, that it is permissible to examine the record resulting in an opinion, to ascertain the grounds upon which the opinion is based. This does not imply acceptance as proven facts, of what the court writing the opinion so regarded.

Máterial to this appeal there are no controverted facts, and we have therefore excerpted from the transcript in the Supreme Court of the United States the history of events above given. This action is not to be taken as a precedent for a right so to do in respect of any matter of fact denied or doubted.

The arbitration statute of New York changed the common law, or at least the common-law method of thinking about arbitration in that state. What New York and other courts regarded as the “common-law limitation upon enforcement of promises to arbitrate” was a part of the law of remedies, which is always a portion of the law of the forum. Therefore the statute itself relates altogether to remedies. Such is the ruling of the New York Court of Appeals. Ber-kovitz v. Arbib & Houlberg, 230 N. Y. 261, at page 270, 130 N. E. 288, 290. This, as the learned court declares, is because “arbitration is a form of procedure whereby differences may be settled. It is not a definition of the rights and wrongs out of which differences grow. (The statute) did not attach a new obligation to (contracts) already made. It vindicated by a new method the obligation then existing.”

Since The Lottawanna, 21 Wall. 558, 22 L. Ed. 654, it seems superfluous to further discuss the proposition that the states acting through their Legislature or their courts cannot create a new remedy enforceable in the admiralty, nor take away any remedy there already existing. There are instances in which new substantive legal rights created by the states may be enforced by remedies of its own in the admiralty, but it is entirely plain that this matter of arbitration, whether based on a New York statute or resting upon traditional and judge-made law, is wholly matter of remedy.

We therefore hold that the Arbitration Act of New York, although affording a' remedy in respect of this charter party, has no effect upon whatever remedy the admiralty offered for the settlement of disputes arising under the same charter party.

But even admitting this point, it is strenuously urged that the arguments presented at this bar when The Atlanten, 252 U. S. 313, 40 S. Ct. 332, 64 L. Ed. 586, was before us (Aktieselskabet Korn-og Poderstof Kompagniet v. Rederiaktiebolaget Atlanten, 250 F. 935, 163 C. C. A. 185, Ann. Cas. 1918E, 491), and in The Eros, 251 P. 45,163 C. C. A. 295, have now received, such additional strength by the decision of the Supreme Court in Red Cross Line v. Atlantic Pruit Co„ supra, that it is our duty to reverse the interlocutory order entered herein on the opinion of Mack, J., supra, and hold that the second defense was good.

In other words, we are asked to assume that the Supreme Court, without the compulsion of any statute, is now ready to hold that in. proceeding upon an executory contract containing am agreement to arbitrate any and all disputatious matters arising therefrom, no action would lie upon an arbi-trable dispute, if the party sued pleads (as here) the arbitration clause and willingness to abide thereby.

This is asking a good deal. Por some years, and certainly since the publication in 1918 by the Chamber of Commerce of the City of New York of Mr. J. H. Cohen’s “Commercial Arbitration and the Law,” argument over this matter has arisen in many places and been presented to many courts.

It is common knowledge that this movement resulted in the New York Arbitration Act, and it is similarly known that efforts to induce the Congress to pursue substantially the same course have hitherto failed. Thus without legislation, and because the trend of modern opinion is toward the literal enforcement of the contracts of men of mature years and presumably sound mind, this court is asked to provide some method of overriding, or' explaining away not only its own previous decisions bnt those of the Supreme Court, which for a generation or so have been regarded as declaring the law to be that any agreement contained in an ex-ecutory contract, ousting in advance all courts of every whit of jurisdiction to decide contests arising out of that contract, will not be enforced by the courts so ousted.

It is true enough that the executory contract to arbitrate is not usually denounced as per se illegal, but the rulings amount to the same thing in the end, for courts will not specifically enforce arbitration but leave the party who wishes to arbitrate to bring suit for breach of the contract so to do, and award him nominal damages. Munson v. Straits of Dover (D. C.) 99 F. 787.

The matter is one of general law. We are not in the technical sense “bound” by state decisions; but we are bound by the authoritative language of the Supreme Court of the United States until that tribunal and none other concludes to reverse what it has declared for law, or,precipitate by the chemistry of new language, all meaning out of what it has said aforetime.

The general doctrine (probably arguendo) was set forth by Hunt, J., in Insurance Co. v. Morse, 20 Wall. 445, 451, 452, 22 L. Ed. 365. There it was assumed as the basis for further argument that the well-known principle announced by Story, J., in his Commentaries on Equity Jurisprudence, was sound law.

The rule was relied on by dwelling on the exception in Hamilton v. Home Ins. Co., 137 U. S. 370, 385, 11 S. Ct. 133, 34 L. Ed. 708, which was merely a repetition of the assumption and course of argument pursued in Hamilton v. Liverpool Co., 136 U. S. 242, 255, 10 S. Ct. 945, 34 L. Ed. 419. As for the lower courts, the adherence to the doctrine thus recognized in the Supreme Court could be shown by wearisome citations, of which one of the latest, showing the elementary form which the question has long assumed, is Robert Grace Co. v. Chesapeake, etc., Co. (C. C. A.) 281 F. 904.

The point has been conveniently presented before now to the Supreme Court.' The appeal in The Atlanten, supra, afforded an opportunity which was confessedly avoided because, as Holmes, J., remarked (252 U. S. at page 315 [40 S. Ct. 333]), “it is not necessary to [decide the matter] in order to decide the ease before us.”

And in the case so pressed on us (264 U. S. 109 [44 S. Ct. 274]), Brandéis, J., confined opinion very carefully to the New York statute, while remarking (page 120 [44 S. Ct. 276]) that the “federal courts like those of the states and of England have, both in equity and at law, denied, in large measure, the aid of their processes to those seeking to enforce executory agreements to arbitrate disputes.”

That refusál still continues, and it is not only permitted, but generally believed to be required by the decisions of the Supreme Court, if adherence to the spirit as well as the letter of controlling opinion be loyal obedience to the precedent system.

The situation above depicted is beyond all question one that calls for remedial action. Yet those recognizing the evil, recognize also the difficulty of devising a remedy suitable to agreements like charter parties, made in all parts of the world, to be performed on any waters and where the natural, yet tyrannical inclination of the stronger party to the bargain will be to insert a clause requiring arbitration in his own “home town.”

This particular charter party called for arbitration in New York. It is common knowledge, however, that the majority of such charters, especially if they be on time and not for a voyage, are drawn with provisions for arbitration in London, and with an eye to the existing arbitration statutes of Great Britain.

Very wisely, the New York Court of Appeals called attention to this difficulty in Berkovitz v. Arbib & Houlberg, 230 N. Y. at page 273, 130 N. E. 288, and especially reserved the question (not yet presented) whether the New York statute can or should be so-read as to cover arbitrations in foreign parts.

This is but one of the thorny questions presented by the demand that we abandon, overrule, or explain away a multitude of decisions, and hold that a general agreement to arbitrate all questions arising under the contract in which the agreement is inserted is a good bar in admiralty to suit for breach of said contract.

Until that tribunal whose decisions are binding upon us takes that step, we cannot do it. Whether any court by decision can cover all the ramifications of doubt, the confusion and possible injustice that would arise from such holding may well be doubted. But that the situation is one calling for legislative action seems to us free of all doubt.

Decree affirmed, with costs.


author: HUNT, Circuit Judge.

text:
    PACIFIC TELEPHONE & TELEGRAPH CO. v. AGNEW.
    (Circuit Court of Appeals. Ninth Circuit.
    March 30, 1925.)
    No. 4381.
    I. Courts <§=328(2)— Jurisdiction of federal courts; matter in controversy.
    The amount claimed in a suit is not always the matter in dispute, as where the suit involves the right of a public service corporation to charge certain rates for service rendered to its many patrons, in which case the value of that right is the amount in controversy for the purpose of determining the jurisdiction of a federal court.
    2. Courts <§=508(2)— Jurisdiction of federal court; ancillary suit.
    Where a federal court by temporary injunction restrained enforcement of telephone rates fixed by a state board and authorized the putting in force of temporary rates, an action by a telephone user against the company before a justice of the peace to recover the difference between the rate so charged and paid and the rate fixed by the commission will be enjoined to protect the prior acquired jurisdiction of the federal court, without regard to the amount involved.
    3. Telegraphs and telephones <§=33 (1) — Telephone company held1 entitled to charge temporary rates put in force by order of federal pourt.
    Where a temporary schedule of rates for a telephone company was put into force by an order of a federal court, in a suit to enjoin enforcement of rates fixed by a state commission, the right of the company to charge such rates is not affected by its failure to file the schedule'as required by a state statute, where it had been enjoined by a state court from making such filing.
    Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.
    Suit in equity by the Pacific Telephone & Telegraph Company against Henry Clay Agnew. From a decree dismissing the bill, complainant appeals.
    Reversed and remanded.
    For opinion below, see 2 F.(2d) 155.
    Chadwick, McMieken, Ramsey & Rupp and Otto B. Rupp, all of Seattle, Wash., Post, Russell & Higgins, of Spokane, Wash., and Pillsbury, Madison & Sutro, of San Francisco, Cal. (W. V. Tanner, of Seattle, Wash., of counsel), for appellant.
    George A. Meagher, Asst. City Atty., Marion A. Butler, and Warren Hardy, all of Seattle, Wash., for appellee.
    Before ROSS and HUNT, Circuit Judges, and BOURQUIN, District Judge.
   HUNT, Circuit Judge.

Appellant, Pacific Telephone & Telegraph Company, referred to as the Telephone Company, appeals from a decree made in October, 1924, dismissing the suit brought by it against Agnew, appellee, to restrain him from further prosecuting an action instituted by him in a justice’s court in Seattle, Wash., and from further interfering with the possession and control exercised by the United States District Court over certain property.

In. March, 1923, the department of puhlie works of the state of Washington prescribed certain maximum reates for telephone service. Thereafter in April, 1923, the Tele*-phone Company obtained a restraining order against the department of public works of the state in the United States District Court, and during the life, of such restraining order certain rates were made effective; such rates, spoken of as the Cleland rates, being those which a dissenting member of the department of public works had found were just and reasonable. A few days thereafter the Telephone Company filed a schedule of rates with the department of public works. Upon the schedules filed there was an annotation by the Telephone Company that the schedule was filed in accordance with the restraining order which had theretofore been issued. The department of public works received the filing as tendered. On ■that same day the city of Seattle instituted a proceeding in the superior court of Thurs-ton county, Wash., to review the order of the department of public works, which had been made on March 31, 1923, and obtained an injunction restraining the Telephone Company from thereafter filing any schedule of rátes with the department of puhlie works, and also restraining that department from receiving any schedule of rates from the Telephone Company. In April application of the Telephone Company for an interlocutory injunction was heard by three judges in the United States District Court, and an order was made dissolving the restraining order and denying temporary injunction. Upon appeal to the Supreme Court of the United States from the order of the three-judge court, the order of the District Court was reversed. Pacific Telephone Co. v. Kuy-kendall, 265 U. S. 196, 44 S. Ct. 553, 68 L. Ed. 975. Shortly thereafter, upon application to the United States District Court for a temporary injunction, the court, in July, 1924, directed that the Telephone Company might, pending final hearing, put in effect the Cleland rates. Afterwards the department of public works gave notice' of a hearing on the rates which had been filed pursuant to the restraining order, and in October an order was made declaring that the so-called Cleland rates were unjust and unreasonable and the schedule of such rates was suspended.

In September, 1924, Agnew, appellee herein, brought the suit referred to as instituted in the justice’s court at Seattle. The gist of Agnew’s allegations was that for August, 1924, he had been’ compelled to pay for telephone service $35, hut that the last schedule of rates on file with the department of public works required payment of but $27.55. He prayed for judgment in the sum of $7.55 with interest and costs. These amounts are explained by saying that under the Cleland rates the charge of $35 would be payable by Agnew for telephone service, while under the order of the department of public works $27.55 would be the charge for the service. The Telephone Company petitioned for removal of the Agnew suit to the United States District Court, and gave the requisite bond; but the justice of the peace denied the application. Shortly thereafter the Telephone Company brought the present suit in the United States District Court, asking injunction against -Agnew restraining him from further prosecuting his suit in the justice’s court. As part of its petition, the Telephone Company refers to the suit brought by it in the United States District Court in April, 1923, and to the suit brought by Agnew in September, 1924.

After a hearing the District Judge held that the complaint herein failed to state a cause of action, in that the Telephone Company had not put into effect the order of' July 23, 1924, by filing with the department of public works of the state the Cleland rates; and, furthermore, .that the suit brought by Agnew in the justice’s court was not removable to the federal court.

The position of the Telephone Company is that this suit is ancillary to the suit brought by the Telephone Company in the United States District Court in April, 1923, and that the question of the amount involved is not material. The city attorney of Seattle appeared as amicus curias and contended that there is no jurisdiction, and denied that this suit is ancillary.

The amount is not always the matter in dispute, and very 'clearly is not in this instance. Smith v. Adams, 150 U. S. 167, 9 S. Ct. 566, 32 L. Ed. 895. Mr. Agnew’s action is based upon the hypothesis that the Telephone Company shall charge a certain rate which it appears has been filed with the state authorities; that is, rates which the state authorities had continued as effective by order of the department of public works, made March 31,1923, and not upon a charge as per the schedule of rates which had become effective by virtue of an injunctive order of the federal court. The genesis of a litigation may be a single charge of a small sum for a public service; but where, as here, it is shown that the controversy necessarily involves the. right of a public service company .to charge certain rates for service rendered to thousands of its patrons, and decision must turn upon the establishment of such right, a bill may be sustained as one calling upon the federal court to enforce its decree in a prior suit in- the federal court with a view of doing complete justice among the parties to the suit.

No argument is needed to show that if the plaintiff in the Agnew case may proceed in the justice’s court, the result may be a multiplicity of suits, depriving the Telephone Company of its rights gained by the injunctive order of the federal court. In Looney v. Eastern Texas R. Co., 247 U. S. 214, 38 S. Ct. 460, 62 L. Ed. 1084, we have an analogous case. There the Railroad Commission of Louisiana complained to the Interstate Commerce Commission that certain railroad companies charged unreasonable rates on traffic from Shreveport, La., to points in Texas. The carriers contended that the Interstate Commerce Commission had made an invalid order, but in due course (the Shreveport Cases, 234 U. S. 342, 34 S. Ct. 833, 58 L. Ed. 1341), the order of the commission was upheld. Afterwards the Interstate Commerce Commission made another order concerning rates between Shreveport and certain Texas points, and the railroad companies filed tariffs as required by the order. But the Attorney General of Texas threatened to sue any carrier which complied with the order of the Interstate Commerce Commission. Thereupon the carriers brought suit in the federal court against the Attorney General of the state and others, praying injunction against the Attorney General for such threatened suit. Temporary injunction was granted by the federal court. The Attorney General, however, brought a suit in the state court praying for injunctive order against the carriers from charging the rates fixed by the Interstate Commerce Commission. Thereupon the carriers by ancillary bill prayed the federal court to protect its jurisdiction theretofore acquired, and to enjoin the Attorney General from proceeding in the state court. On the auxiliary bill injunction was granted, and appeal was taken to the Supreme Court. After referring to the familiar and long-established practice of the use of the writ of injunction by federal courts first acquiring jurisdiction over the parties and the subject-matter of a suit, for the purpose of preserving that jurisdiction until the object of the suit is accomplished and “complete justice done between the parties,” the court said: “So important is it that unseemly conflict of authority between state and federal courts should be avoided by maintaining the jurisdiction of each free from the encroachments of the other, that section 265 of the Judicial Code Rev. Stats., § 720, Act of March 2, 1793, c. 22, 1 Stat. 334, has repeatedly been held not applicable to such an injunction.” We think the principle there applied is controlling in the present matter, and that to protect its jurisdiction the federal court should issue the order prayed for.

The fact that after entry of the decree of the federal (three-judge) court on July 23, 1924, the Telephone Company did not file with the department of public works of the state of Washington a schedule of rates permitted to be charged by the decree referred to, does not impair the right to .the relief now asked, for the situation was such that the Telephone Company could not file with the department of public works the so-called Cleland rates, because injunction had been issued by the superior court of Thurston county, Wash., enjoining it from so doing.

■ After the city of Seattle brought a proceeding and obtained an order that the members of the department of public works and the Telephone Company “desist from filing or attempting to file new, or other, or alternative telephone tariffs or schedules of telephone rates in the premises” — an order which it would appear is still in force — no fault should be attributed to the Telephone Company for not disobeying that order of the local authorities; nor should the company be held to have forfeited or waived its rights.

The views just expressed dispose of the main point, and make the question whether or not the Agnew suit is removable of no pressing moment. However, we are disposed to believe that upon the face of the petition ground for removal was shown.

. The decree dismissing the suit is reversed, and the cause is remanded, with directions to grant an order restraining Agnew from further prosecuting the action brought by him in the justice’s court at Seattle, and from further interfering with the possession and control exercised over certain property now in the possession and control of the United States District Court.

Reversed and remanded.


author: ALSCHULER, Circuit Judge.

text:
    HAGGERTY v. UNITED STATES. KOONTZ v. SAME.
    (Circuit Court of Appeals, Seventh Circuit.
    March 19, 1925.)
    Nos. 3465, 3476.
    1. False personation <@=>1 — Prohibition agent can be convicted of aiding and abetting others in falsely assuming to be prohibition agents.
    A United States prohibition agent, who aided and abetted others in falsely assuming to be prohibition agents, and thereby obtaining money in violation of Criminal Code, § 32 (Comp. St. § 10196), is subject to prosecution, though section 332 (Comp. St. § 10506) makes a person who aids and abets in the commission of . a crime a principal, and such agent could not commit crime aided and abetted.
    2. False personation ®=>6 — Evidence held to warrant finding that defendant not prohibition agent.
    In prosecution for falsely assuming to be United States prohibition agent and obtaining certain amount from certain person as such, evidence held to warrant finding that defendant was not prohibition agent.
    3. Criminal law <@=>1l70i/2(2) — Cross-examination of defendant as to other offense' held harmless, in view of subsequent exclusion of evidence of other witness.
    Cross-examination of defendant as to whether he committed other similar’ offense, denied by defendant, held: harmless, in view of subsequent exclusion of evidence of other witness on subject.
    4. Criminal law <®=*823( 10)— Charge held not objectionable as confining jury to consideration of government’s testimony.
    ' Charge 'to convict if jury believed beyond reasonable doubt the testimony submitted by the government was true, but adding that whether the facts were proved beyond a reasonable doubt was a question for the jury, held not erroneous as telling jury to consider merely the evidence of the government and not that of the defendant, in view of other portions of charge. .
    5. Criminal lav; ®=»822(l) — Portion of charge claimed erroneous must be considered with entire charge.
    Portion of the charge claimed to be erroneous must be taken in connection with the entire charge.
    6. Criminal law <S=>74I(I), 742(1) — Weight of evidence and credibility of witnesses was for jury.
    The weight of the testimony and credibility of witnesses was for the jury.
    7. Criminal law <S=*I 144(16) — Circuit Court of Appeals must assume from verdict of guilty that jury believed government’s evidence beyond reasonable doubt.
    The Circuit Court of Appeals must assume, from verdict finding defendants guilty, that jury did not believe defendants’ testimony and did believe the evidence for the government' beyond a reasonable doubt.
    8. Criminal law <®=al 186(4) — Instruction held harmless in view of evidence.
    Charge authorizing conviction if jury believed beyond reasonable doubt the testimony submitted by the government was true, if erroneous on theory that jury might have believed beyond reasonable doubt that evidence for prosecution was true and yet have entertained reasonable doubt of defendants’ guilt, held harmless under Judiciary Act, § 269 (Comp. St. Ann. Supp. 1919, § 1246), in view of evidence.
    In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.
    James Haggerty and Claude Koontz were convicted of assuming to be United States Prohibition Agents and demanding and obtaining money as such, and they bring error.
    Affirmed.
    Henry W. Ereeman, of Chicago, Ill., for Haggerty.
    Edwin A. Eeldótt, of Chicago, Ill., for Koontz.
    Edwin A. Olson and John Elliott Byrne, Sp. Asst. U. S. Atty., both of Chicago, Ill., for the United States.
    . Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.
   ALSCHULER, Circuit Judge.

Haggerty, Koontz, and one Partlow. were tried on counts 1 and 5 of an indictment, the first charging Koontz and Partlow with falsely assuming to be United States prohibition agents and as such demanding and obtaining from one Joseph Stahl $2,100, and Haggerty with aiding and abetting them therein. Count 5 charged the three with conspiracy to commit the said offense. Partlow was acquitted, and the others convicted on first count only, and each sentenced to imprisonment in penitentiary for a year and a day and $1,000 fine.

The first count is predicated on section 32 of the Criminal Code (Comp. St. § 10196), which provides that whoever, with intent to defraud the United States or any person, shall falsely assume or pretend to be a federal officer, and shall in such pretended character demand or obtain from any person any money or other valuable thing, shall- be punished as provided. Eor Haggerty it is contended that being, as in fact he was, a federal prohibition officer, he was incapable of violating section 32, and could not properly be convicted on the first count. The count definitely charges Haggerty with aiding and abetting the others in commission of the crime, and the evidence offered against him shows his part therein to have been that of an aider and abettor. But it is pointed out that section 332 of the Criminal Code (Comp. St. § 10506) provides: “Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal,” and that by virtue thereof, notwithstanding the indictment and proofs may show his participation to have been that of aider or abettor, he became in law, by virtue of the statute, a principal, and being in fact an officer, cannot as a principal be convicted under an indictment predicated on false assumption of official character.

Had Haggerty, a federal officer, been shown in such character to have fraudulently demanded and received money from another, it could hardly be claimed that his conviction under section 32 would have been proper. But the count distinctly charges him to have aided and abetted the others in the crime, and the evidence was that whatever participation he had in the crime was only as aider and abettor. This being so, even though he may have been incapable of committing the crime defined in section 32, he was not incapable of aiding and abetting another in the commission of the crime. Section 332 does not assume to change facts. Before the statute aiders and abettors of others in the commission of crime were punishable as such, whether or not they were themselves capable of committing the principal crime. Wharton Crim. Law (10th Ed.) § 211; Coffin v. United States, 162 U. S. 664, 16 S. Ct. 943, 40 L. Ed. 1109. The statute, in designating aiders and abettors as principals, granted them no immunity, but merely prescribed and simplified the means and manner of procedure for their prosecution on account of their part in the crime.

On behalf of Koontz it is urged that there is no evidence that he was not the federal officer it is charged he pretended to be. Whether or not the negative fact that he was not a federal officer (often difficult of proof by the prosecution) may be assumed in the absence of proof to the contrary (so readily addueible by defendant if in fact he was an officer) we need not consider. It happens that the record here discloses evidence from which the jury was warranted in concluding he was not a federal officer. In his own behalf he testified, in answer to inquiries respecting his business, that for 2% years next before the trial he was selling automobile tires and accessories for a garage at Sheridan and Broadway, Chicago, and for about a year before that was selling insuranee. In thus assuming to state what his business was, and failing to make mention of the business of federal officer, we deem it fairly inferable from the evidence that he was not such officer.

It is further complained that on cross-examination Koontz was improperly required to answer questions respecting another and similar offense. He was so asked and made full denial. But when on rebuttal a witness thereon was offered by the prosecution, on objection being made the court suggested doubt of its admissibility, and the witness was withdrawn and no evidence on the subject was admitted. In this no prejudice to Koontz is apparent.

For both defendants it is earnestly contended that the court seriously erred in charging the jury that “if the facts as related by the government are true, if you believe these facts as the true facts beyond a reasonable doubt, then there is no question as to the guilt of all these three defendants on the first count.” Upon objection at the close of the charge, the court restated it in the words: “That if the jury believed that the testimony submitted by the government was true beyond a reasonable doubt, then they shall find the defendants guilty upon the first count, but whether or not these facts are proven it is for them to determine whether these facts are proven beyond a reasonable doubt. That is for them.”

It is urged that this charge left the jury at liberty to consider only the evidence offered for the government. We do not think that in this respect it was limited so narrowly, especially when, as any portion of a charge must be, taken in connection with the entire charge. In saying, “If you believe beyond reasonable doubt the testimony submitted by the government is true,” the jury was not told that in reaching its conclusion it may consider only the evidence for the government. The natural inference would be that any conclusion reached should be from consideration of all of the evidence which was admitted on the trial. The charge in its final form stated that whether or not these facts were proven beyond a reasonable doubt was a question for the jury. Elsewhere in the somewhat lengthy charge the jury was told that they must decide the case on the evidence submitted. The evidence was reviewed, and, after stating facts adduced for the government, as well as those for defendants, they were told they must determine where the truth lies, and are the ultimate judges of the facts, and that any opinion thereon expressed by the court may be ignored. They were duly charged as to the credibility of witnesses, and told they must not disbelieve defendants who testified merely because they are defendants; that they must pass on the question as to whether “under this evidence the defendants or one or more of them had been proven guilty to a moral certainty in your minds. If they have, they should be convicted; if they have not, they should be acquitted. The law, as I told you in the beginning, was that the defendants must be proven guilty beyond a reasonable doubt by the evidence. There is a presumption of innocence which exists in favor of every defendant, and that presumption must be removed by evidence beyond a reasonable doubt. If you have a reasonable doubt as to the guilt of any defendant, * * * based on the evidence, * * * you must acquit.”

We think that, apart from the construction to be given the portions objected to, the charge in its entirety repels the conclusion that the jury was, or had reason to believe it was, limited to the evidence offered by the government in consideration of the proposition of reasonable doubt. Besides, counsel’s exception to the charge was not that it was predicated only on the evidence for the government but was directed rather to the proposition which we next consider.

Whether or not by the charge complained of the court invaded the province of the jury presents a more serious question. The charge is not a mere expression of the court’s opinion respecting the facts, but a direction to the jury to find the defendants guilty on the first count if they believe beyond reasonable doubt the evidence offered" for the government. Generally speaking, the state of mind which the evidence must induce to admit of a verdict of guilty is belief beyond reasonable doubt of the guilt of the accused. It is readily conceivable that a jury might believe beyond reasonable doubt that the evidence for prosecution is true, and yet entertain reasonable doubt of the guilt of the accused. A charge in this form, even if sustainable in its application to a particular state of facts, would have been not less instructive had it been predicated upon belief beyond reasonable doubt of guilt of the accused. A charge in the form given, in event of conviction, invites further proceedings and complications, often serious, always more easy to be avoided than met.

However, careful search of the record convinces us that these defendants suffered no material harm from the charge complained of. If from all the evidence before them the jury believed beyond reasonable doubt the evidence for the government, then they believed beyond reasonable doubt that the defendants came to the premises one afternoon, and Koontz said to Stahl they were government officers, and showed a paper and his photograph for the evident purpose of lending verity to the claim; that they had come to search for liquor, and Koontz and Hag-gerty searched the premises finding a jug of whisky, whereupon Koontz, displaying a pair of handcuffs, told Stahl he was pinched and would have to go along unless he put up $2,-000 as security for his appearance the following Monday to give bail, and that thereupon Stahl got the $2,000, gave it to Koontz who demanded another $100, which Stahl had displayed, and was also given him, and that all three defendants then left the premises. Koontz admitted going to the premises, but said it was for the purpose of getting back from Stahl about $200 he had paid him for some whisky which Stahl had represented to be of good quality like a sample shown, but was in .fact a spurious and much inferior article; he denied saying he was a federal officer and that he threatened arrest, or demanding or taking any money except what was refunded for the whisky; denied all knowledge of of acquaintance with Haggerty, and that Haggerty was with him at the house. Haggerty disclaimed all knowledge of the entire transaction, any acquaintance with Koontz or Stahl, denied his presence at the place, but maintained he was at the very time attending to official duties in another part of the city. It was not claimed that the money was demanded or paid or the handcuffs shown in Haggerty’s presence.

The weight of the evidence and the credibility of witnesses was for the jury, and assuming, as we must from the verdict, that Koontz and Haggerty were disbelieved, and the evidence for the government was believed beyond reasonable doubt, under the facts so appearing and believed, there is practically no room for contention that their presence at this residence was out of innocent motives, or that any such facts or circumstances raise a reasonable doubt of their guilt. While in a given case a jury might find the evidence for the government true beyond reasonable doubt, and might still entertain reasonable doubt of guilt of the accused, yet where, as here, the evidence for the government, if believed to be true, leaves no room for doubt as to the guilt of the accused, the ease fairly falls within section 269 of the Judiciary Act (Comp. St. Ann. Supp. 1919, § 1246), which provides that on hearing of a writ of error the court shall, on examination of the entire record, give judgment without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties. Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct 53, 65 L. Ed. 185.

The judgment is affirmed.


author: BRYAN, Circuit Judge.

text:
    FIELDER et al. v. BAY CONST. CO. et al.
    (Circuit Court of Appeals, Fifth Circuit.
    April 1, 1925.)
    No. 4492.
    1. Maritime liens @=42 — Agreement that wages of crew of dredge paid for owner should be repaid out of earnings of dredge held not to waive lien against dredge.
    Though maritime lien is waived by accepting credit of owner of vessel, agreement that wages of crew of dredge belonging to subcontractor, which were paid by contractor, should be repaid out of earnings of dredge, did not waive contractor’s lien on dredge for wages paid.
    2. Subrogation @=23(7) — Contractor advancing wages of crew of dredge belonging to its subcontractor held not volunteer.
    Bridge contractor, which advanced wages of crew of dredge belonging to subcontractor in order to carry on wo.rk under contract, was not mere volunteer and was entitled to be subro-gated to crew’s lien against dredge.
    Appeal from the District Court of the United States for the Southern District of Florida; Lake Jones, Judge.
    Libel by W. M. Fielder and another, co-partners as Fielder & Mitchell, and others, against the dredge Florida, owned by the Peninsular Dredging Company, in which the Bay Construction Company intervened. Decree for intervener, and libelant appeals.
    Affirmed.
    T. M. Shackleford, Jr., of Tampa, Fla. (W. M. Taliaferro, of Tampa, Fla., on the brief), for appellants.
    T. Paine Kelly, of Tampa, Fla., for appel-lees.
    Before WALKER, BRYAN, and . FOSTER, Circuit Judges.
   BRYAN, Circuit Judge.

The dredge Florida, owned by the Peninsular Dredging Company, was libeled by appellants for materials, repairs and supplies. The Bay Con-. struetion Company, appellee, intervened, and alleged that it had advanced to the dredging company the sum of $6,500, to be used in paying the wages of the dredge’s crew, and that such sum was actually so used. Appellants, answering appellee’s libel, admitted that certain advances to the dredging company had been made, but denied that they amounted to as much as was claimed by ap-pellee; and averred that such advances, whatever they amounted to, were to be paid back out of the future earnings of the dredge.

The evidence shows that appellee advanced to the dredging company $6,500, of which the sum of $5,465.10 was paid to the crew of the dredge under the following circumstances: Appellee had a contract to construct the Gandy Bridge across Tampa Bay, and it let a contract for certain dredging to the Seaboard Dredging Company, which in turn let a contract for some of the dredging to the Peninsular Dredging Company. The last-named company, finding itself unable either to pay its crew or the claims of appellants for materials, repairs, and supplies, requested appellee to advance the money for the crew, and agreed to make repayment out of the earnings of the dredge.

The dredge was sold, but the purchase price was insufficient to satisfy in full the claims of all the libelants. The District 'Court entered a decree for the payment to appellee of the full amount furnished by it and received by the crew, and for the payment pro rata of the claims of appellants out of the balance derived from the sale.

There is a suggestion that appellee failed to prove that there was any balance due it; but as the answers only denied the amount of- the advances, and did not aver that whatever amount had been advanced had been repaid, no issue was raised as to the balance due.

It is insisted that appellee never acquired a lien on the dredge, inasmuch as it agreed that the amounts paid out by it on account of the crew’s wages should be repaid out of the earnings of the dredge. The only value a dredge has lies in its earnings, and we are of the opinion that one who relies upon the earnings of a dredge relies upon the dredge itself, notwithstanding a contrary ruling in The Jennie Middleton (D. C.) 94 F. 683. In the Income Tax Cases (Pollock v. Farmers’ Loan & Trust Co.) 157 U. S. 429, at page 580, 15 S. Ct. 673, 689, 39 L. Ed. 759, it is said: “As according to the feudal law, the whole beneficial interest in the land consisted in the right to take the rents and profits, the general rule has always been, in the language of Coke, that ‘if a man seized of land in fee by his deed granteth to another the profits of those lands, to have and to hold to him and his heirs, and maketh livery" secundum formam chart® the whole land itself doth pass. For what is the land but the profits thereof?’ Co. Lit. 45. And that a devise of the rents and profits or of the income of lands passes the land itself both at law and in equity.” The same reasoning is as applicable to the earnings of a dredge boat as it is to rents derived from land. One who has a lien recognized in admiralty waives it by accepting the credit of the owner. But reliance upon the earnings of a vessel shows conclusively that the lien is not waived, and that the creditor is unwilling to accept the liability of its owner.

It is also argued that appellee was a mere volunteer; but clearly it was not. It acted for its own self-protection, in carrying on the work for which it was responsible under its contract, and at the request of the debtor. 5 Pomeroy’s Equity Jurisprudence (2d Ed.) §§ 2344, 2346, 2347.

Appellee became entitled by subrogation to the crew’s lien, which admittedly was superior to the liens held by appellants.

The decree is affirmed.


author: RUDKIN, Circuit Judge.

text:
    JUNG SIR KWAI v. NAGLE, Commissioner of Immigration at the Port of San Francisco.
    (Circuit Court of Appeals, Ninth Circuit.
    April 9, 1925.)
    No. 4346.
    Aliens <S=a32(l) — Chinese immigrant, not claiming citizenship, not entitled to hearing before board of special inquiry.
    A Chinese applicant for admission to the United States, who does not claim American citizenship, is not entitled, as matter of right, to have his case heard by a board of special inquiry.
    Appeal from the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge.
    Petition of Jung Sir Kwai against John D. Nagle, Commissioner of Immigration at the Port of San Francisco, for writ of ha-beas corpus. Petition denied, and petitioner appeals.
    Affirmed.
    Stephen M. White, of San Francisco, Cal., for appellant.
    Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
    Before HUNT, RUDKIN, and MORROW, Circuit Judges.
   RUDKIN, Circuit Judge.

The application of Jung Sir Kwai to enter the United States as the minor son of Jung Young, a resident Chinese merchant, was denied by the immigration authorities and by the Secretary of Labor. An application for a writ of habeas corpus in his behalf was' likewise denied. The application for admission was heard by a single ’ immigrant inspector, and the principal assignment of error is based upon the claim that the appellant was' entitled to have his ease heard before a board of special inquiry, as a matter. of right. Section 16 of the Immigration Act of February 5,1917 (39 Stat. 886 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289^]), provides as follows:

“Every alien who may not appear to the examining immigrant inspector at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for examination in relation thereto by a board of special inquiry.”

It was held by this court in Quan Hing Sun v. White, 254 F. 402, 165 C. C. A. 622, and Jeong Quey How v. White, 258 F. 618, 170 C. C. A. 72, that a Chinese person, claiming to be a citizen of the United States, had a right to have his application for admission heard by the board of special inquiry provided for by section 25 of the Immigration Act of February 20, 1907 (34 Stat. 906). The provision of that section is in all respects similar to the provision of section 16 of the Immigration Act of 1917, supra. In Lim Chan v. White, 262 F. 762, a doubt was suggested whether that rule was applicable where the Chinese person did not claim to be a citizen of the United States. March 6,1919, after the decision in Quan Hing Sun v. White, supra, the Secretary of Labor directed that the status of all arriving aliens be determined by a board of special inquiry. About two years later, because of the congestion of business at Angel Island, the Secretary made a further order that Chinese applicants for admission, excepting those claiming citizenship, should be disposed of under the rule in force prior to the order of March 6, 1919, and that practice has been followed ever since. The question is directly presented, therefore, whether a- Chinese applicant for admission to the United States, who does not. claim a right to enter by reason of his citizenship, is entitled to have his case heard by a board of special inquiry. The repealing clause found in section 38 of the Immigration Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%,u) contains this proviso:

“Provided, That this act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent, except as provided in section nineteen hereof. * * * ”

Section 19 (section 4289%jj), therein referred to, provides only for the deportation of aliens found unlawfully in the United States. It would seem, therefore, that the provisions of the Immigration Act relating to a board of special inquiry have no application to Chinese persons seeking to enter the United States, unless their applications are based on a claim of citizenship. It is further contended that there is no competent testimony to support the findings of the department. The appellee was denied admission because of discrepancies between his testimony and the testimony of his alleged father and brother, and more especially because of a lack of any knowledge on his part as to persons and places in the vicinity in which he claims to have spent eighteen years of his life. A review of the testimony satisfies us that the .conclusions of the department are not so lacking in support in the testimony as to justify judicial interference. The judgment is therefore affirmed.


text:
    STRAUSS BASCULE BRIDGE CO. v. CITY OF SEATTLE.
    (Circuit Court of Appeals, Ninth Circuit.
    April 20, 1925.
    Rehearing Denied May 25, 1925.)
    No. 4506.
    1. Patents <@=>327 — Judgment of Circuit Court of Appeals of one circuit sustaining patent will be considered, but is not conclusive on court of other circuit.
    The fact that the Circuit Court of Appeals for one circuit has sustained patent is entitled to the respectful consideration of court of other circuit, but is not conclusive on such other court, where eerfain material evidence is before it which was not before first court.
    2. Patents <§=>328 — Refusal of temporary injunction restraining city from constructing bridge in patent infringement suit held not abuse of discretion.
    In suit to enjoin city constructing bridge from infringing patent No. 995,813, claims 9 and 19, for bridges, refusal to grant temporary injunction held within sound discretion of court, in view of the facts.
    Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Netterer, Judge.
    Suit by the Strauss Bascule Bridge Company against the City of Seattle. From order denying temporary injunction, plaintiff appeals.
    Affirmed.
    J. W. Robinson and John F. Murphy, both of Seattle, Wash., for appellant.
    Thomas J. L. Kennedy, Walter B. Beals, A. C. Van Soelen, and G. Wright Arnold, all of Seattle, Wash., for appellee.
    Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
   HUNT, Circuit Judge.

The Bascule Bridge Company sued the city of Seattle and alleged infringement of claims 9 and 19 of patent No. 995,813, issued June 30, 1911, and filed motion for temporary injunction to enjoin the city from using certain plans adopted for the construction of what is called the Montlake Bridge. After hearing upon affidavits, temporary injunction was denied, and the bridge company appealed from the order of denial.

The claims of the patent alleged to be infringed are: “(9) A bridge comprising a movable section, a stationary cross-support therefor, the rear ends of the movable section having truss members which completely surround the said cross-support. (10) A bridge comprising a movable section, two upright supports therefor, one on each side of the roadway, a stationary cross-support connected with said upright supports and upon which the movable section is mounted; the main trusses of the movable section ending at the said cross-support, the rear end of the movable section having truss members above and below said cross-support, and arranged so as to be at all times free from the cross-support when the movable section is lifted.” For the present purposes it is sufficient to say that the substance of the allegation is that the city, to secure the benefits and use of the patent and the claims just referred to, purposely omitted the middle portion of the cross-beam, but retained sufficient at both ends attached to support the trunnions, and that the city bridge plan has the same construction as claim 9, and operates the same way; also, has the same elements as elaim 10, operating in the same way to produce the same results. It is further alleged that notice was given to the city that its proposed plans and specifications for the bridge constituted infringement of claims 9 and 10. The city, through affidavits of engineers and others, denied infringement to any extent, and with detailed statement set forth that the structure being built by the city is mechanically substantially like the structure called for in patent No. 738, 954, for a bridge granted to Strauss September 15, 1903, and filed December 19, 1902, now expired. Affidavits in behalf of the city also set forth that what is called the precision scale balance constitutes complete anticipation of claims 9 and 10 of the patent in suit. It also appeared that if construction were stopped the public would be much inconvenienced.

It is unnecessary upon this appeal to go at length into the detailed comparisons made by the engineers, for after careful consideration of the argument and briefs, we are satisfied that the issues cannot be accurately solved until after trial. The fact that the patent has been sustained by the Court of Appeals for the Sixth Circuit (Strauss Bascule Bridge Co. v. City of Chicago, 261 F. 358) is entitled to our respectful consideration. But it appears that in the present application for injunction the eourt had before it certain material evidence which was not before the court in the case cited.

We conclude that under the facts and circumstances denial of the injunction was within the sound discretion of the eourt.

The order appealed from is affirmed.


author: WALKER, Circuit Judge.

text:
    UNITED STATES v. LESTER F. ALEXANDER & CO. et al.
    (Circuit Court of Appeals, Fifth Circuit.
    April 13, 1925.)
    No. 4282.
    1. Salvage <©=>13 — Allowance of salvage for services rendered in towing helpless steamship held proper.
    Where steamship was helpless at sea and was in some danger, though danger was not imminent, and was towed by one tug to safer anchorage where master could conveniently make all arrangements for towage to other point, and was towed by other tug to such point, allowance of salvage for services rendered by both tugs was proper.
    2. -Salvage <©=>34 — Allowance of less than double ordinary contract towage rate held not excessive.
    Allowance, as salvage, of considerably less than double the ordinary contract towage rate for towing steamship which was helpless at sea to safer anchorage, helé not excessive.
    Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.
    Salvage proceeding by Lester E. Alexander & Co. and another against the United States. From a decree awarding salvage, the United States appeals.
    Affirmed.
    Edouard F. Henriques, Sp. Asst. U. S. Atty., of New Orleans, La.
    Nat. W. Bond, John D. Grace, and M. A. Grace, all of New Orleans, La., for appel-lees.
    Before WALKER and BRYAN, Circuit Judges, and BARRETT, District Judge.
   WALKER, Circuit Judge.

The appellant, which asserts a claim, based on the assignment to it of claims of seamen for services to th,e steamship Minnesota, against the $3,750 for which that vessel was sold, complains of two salvage awards against that vessel, one of $625 in favor of Lester E. Alexander & Co., and the other of $1,240 in favor of Bisso Towboat Company. On January 27, 1921, the Minnesota, when at anchor in the Gulf of Mexico, off the mouth of the Mississippi river, and having boiler troubles which disabled it from proceeding-under its own power, sent out a wireless call for help, which was responded to by the tug Ionian, then under charter to Alexander & Co. The Ionian towed the Minnesota to an anchorage just outside of South Pass, where she again anchored. There was no agreement as to compensation for that service, but a charge of $500 therefor and of $125 for the use of a hawser was allowed. The Ionian was engaged in the service from 3 o’clock p. m. until 9 p. m., and got back to its original station at midnight the same night. The next day the captain of the Minnesota by wireless arranged with Bisso Towboat Company to tow the ship to New Orleans for $1,-240. The tug Barranca rendered that service. When the captain of the Minnesota stated to the master of the Ionian that he wanted to be towed into South Pass, the latter stated that he could not do that, as after dark pilots could not take anything in on a hawser.

We are of opinion that both the tugs rendered salvage services. The Minnesota was helpless at sea, and was in some danger at each of the places from which she was towed, though the danger was not imminent. Apparently the Ionian rendered all the service that was expected of it by the master of the Minnesota. The vessel was towed to a safer anchorage, where its master conveniently could make bis own arrangements for tbe towing of it to New Orleans. Tbe service of the two tugs was practically continuous. That service was kept from being a mere towage service by tbe fact that tbe Minnesota was disabled, and what was done in its behalf was tbe means oft enabling it to escape from a present or prospective danger. 35 Cyc. 724. Considerably less than double tbe ordinary contract towage rate was awarded for tbe service rendered by tbe Ionian. That award cannot properly be regarded as excessive. Magnolia Petroleum Co. v. National Oil Transport Co. (C. C. A.) 286 F. 40. Tbe amount awarded for tbe service rendered by tbe Barranca was on tbe basis of tbe ordinary towage rate which was agreed on. There is no tenable ground for complaining of tbe amount of that award.

Tbe decree is affirmed.


author: ROSS, Circuit Judge.

text:
    DUPUIS v. UNITED STATES.
    (Circuit Court of Appeals, Ninth Circuit.
    April 13, 1925.
    Rehearing Denied . May 11, 1925.)
    No. 4421.
    1. Criminal law <©=1134(2) — Claim of what could have been shown, had witnesses for defendant been procured at government’s expense, not considered.
    What it is contended defendant could have shown, had the trial court, under Rev. St. § S78 (Comp. St. § 1489), permitted him to procure witnesses at the expense of the government, cannot be considered.
    2. Witnesses <@=2(l) — Procuring witnesses for defendant at government expense in discretion of trial court.
    The matter of procuring at government expense witnesses for an indigent defendant in federal court is, under Rev. St. § 878 (Comp. St. § 1489), solely in the discretion of the trial court.
    3. Indians <@=34 — So long as tribal relations existed, immaterial that sale of liquor was to one entitled to no allotment under Indian Allotment Act.
    Relative to sale of liquor to an Indian, the national guardianship over Indians continues as long as the tribal relations exist, so that such relations existing, as to the woman to whom sale was made, it is immaterial that she Was not entitled to any allotment under the Indian Allotment Act:
    In Error to tbe District Court of tbe United States for tbe District of Oregon; Robert S. Bean, Judge.
    Jim Dupuis was convicted of selling liquor to an Indian, and brings error.
    Affirmed.
    Paul C. Dormitzer, of Portland, Or., for plaintiff in error.
    John S. Coke, U. S. Atty., and Millar E. MeGilehrist, Asst. U. S. Atty., both of Portland, Or.
    Before ROSS, HUNT, and RUDKIN, Circuit Judges.
   ROSS, Circuit Judge.

We see no merit in tbe argument for the plaintiff in error. What it is contended be could have shown, bad tbe trial court permitted him to procure witnesses at the expense of tbe government, cannot, of course, be considered, for no such witnesses were procured or appeared. That tbe matter of such procurement was within tbe discretion of tbe court is both statutory and settled by tbe courts. Rev. Stat. § 878 (Comp. St. § 1489); Goldsby v. U. S., 160 U. S. 70, 16 S. Ct. 216, 40 L. Ed. 343; O’Hara v. U. S., 129 F. 551, 64 C. C. A. 81.

Tbe claim that tbe woman to whom tbe liquor was alleged and shown to have been sold by tbe plaintiff in error was not an Indian, because, according to tbe evidence, not entitled to any allotment under tbe Indian Allotment Act, is unsound, for the reason that tbe national guardianship over tbe Indians continues (in the absence of an act of Congress to tbe contrary) as long as tbe tribal relations exist. In tbe present case there was testimony to show that such relations did exist. And there was also testimony tending to show tbe alleged sales of tbe alleged liquor by tbe plaintiff in error to tbe Indian woman on tbe occasions and at tbe times and place alleged in tbe indictment.

Tbe judgment is affirmed.


text:
    DAVISON v. WALWORTH MFG. CO.
    (Circuit Court of Appeals, Ninth Circuit.
    April 20, 1925.)
    No. 4277.
    Municipal corporations <©=>592(i) — Right of way in street governed by state statute, not-. withstanding conflicting ordinance.
    Right of way in city in Oregon is that prescribed by Motor Vehicle Law of such state, notwithstanding ordinance of the city in direct conflict therewith.
    In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.
    . Action by A. E. Davison against the Wal-worth Manufacturing Company. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Wm. P. Lord and Arthur I. Moulton, both of Portland, Or., for plaintiff in error.
    Griffith, Peek & Coke and A. G. Barry, all of Portland, Or., for defendant in error.
    Before ROSS, HUNT, and RUDKIN, Circuit Judges.
   ROSS, Circuit Judge.

The plaintiff in error was at the time here in question a police officer of the city of Portland, Or., riding a motorcycle belonging to the police department' of that city in pursuance of his duties as such officer, going west on Taylor street, while an automobile of the defendant in error was being driven south on Park street, and as the officer approached the intersection of the two streets he, fearing a collision with the automobile, turned south on Park street and skidded into an automobile parked on its west side, being thereby thrown to the pavement and sustaining injuries for which he sued.

According to the record, the real and only question here presented is whether the officer had the right of way by virtue of an ordinance of the city of Portland, as is claimed on his behalf, thereby making it the duty of the driver of the automobile to keep out of his way, or whether the case is controlled by the Motor Vehicle Law of the State of Oregon (Laws 1921, p. 707), as the court below held, and which it is conceded is in direct conflict in that respect with the city ordinance referred to.

That question we find has been directly decided in several cases by the Supreme Court of the state. See Rose v. Port of Portland, 82 Or. 541, 162 P. 498; Lovejoy v. City of Portland, 95 Or. 459, 471, 472, 473, 188 P. 207; Hillsboro v. Public Service Commission, 97 Or. 320, 336, 337, 187 P. 617, 192 P. 390; Dent v. Oregon City, 106 Or. 122, 211 P. 909; West v. Jaloff (Or.) 232 P. 642,. decided January 2, 1925.

The judgment is affirmed.


author: PER CURIAM.

text:
    In re RABINOWITZ et al.
    (Circuit Court of Appeals, Second Circuit.
    December 2, 1924.)
    No. 115.
    Bankruptcy <®=446 — Findings of fact by lower court conclusive.
    Findings of fact by lower court are conclusive on review by petition to revise.
    Petition to Revise Order of the District Court of the United States for the Eastern District of New York.
    In the matter of Samuel Rabinowitz and others, individually and as copartners, trading as the Aldo Shirt Company, bankrupts. On petition by bankrupts to revise order in bankruptcy directing them to pay over to Norman Tauber, trustee, money withheld by them.
    Order affirmed.
    Kopp, Markewich & Pearlinan, of New York City (Samuel Markewich and Joseph G. M. Browne, both of New York City, of counsel), for petitioners.
    Shaine & Weinrib, of New York City (Maurice L. Shaine, of New York City, of counsel), for trustee respondent.
    Before HOUGH and MANTON, Circuit Judges, and LEARNED HAND, District Judge.
   PER CURIAM.

We are of opinion that this petition raises nothing but questions of fact. As to questions of fact the findings below conclude us, although we have no desire to differ from the conclusions reached by the special master.

Order affirmed, with costs.


author: NETERER, District Judge

text:
    MATTICE v. MARYLAND CASUALTY CO.
    (District Court, W. D. Washington, N. D.
    April 17, 1925.)
    No. 8619.
    1. Trial @=321 — Only verdict is that orally announced, received, and recorded.
    Only verdict is that which jury announces orally to the court, and which is received and recorded as jury’s finding.
    2. Trial @=339(4) — After discharge, jury cannot be reconvened.
    Jury, after being discharged from case, cannot legally be reconvened.
    3. New trial @=I43(I) — Juror cannot impeach verdict.
    Juror cannot impeach his verdict.
    4. New trial @=57 — Warranted where, immediately after filing of verdict, juror made it appear that on poll he dissented from verdict.
    Where immediately after announcement of verdict, poll of jury, filing of verdict, and separation of jury, it was made to appear to the trial judge that one juror; who agreed to verdict before it was signed, dissented therefrom at time jury was polled, motion for new trial for failure of jury to agree may be granted.
    At Law. Action by M. B. Mattiee against the Maryland Casualty Company, a Maryland corporation. On motion for new trial.
    Motion granted.
    This is an action at law, in which a ver-' diet in favor of the plaintiff was returned. After reading of the verdict, counsel for the defendant asked that the jury be polled. The jurors were thereupon instructed that those who favored the verdict should answer “Yes,” and those opposed “No.” The judge and clerk of the court understood all of the jurors to say “Yes,” and it was ordered filed. Immediately the attorney for defendant stated, either that juror No. 12, Schmidt, answered “No,” or he was advised said “No.” The court again directed that Juror Schmidt be polled, and the juror responded “Yes” to the question propounded by the clerk, and the judge understood it was his verdict and ordered it filed. No protest, suggestion, or manifestation of any sort was made by Juror Schmidt that he was misunderstood by the court and that it was not his verdict.
    Immediately after the jury was discharged from further consideration of the case, attorney for the defendant, accompanied by Juror Schmidt, approached the bench, and Juror Schmidt stated that he said “No,” instead of “Y'es,” to the question whether it was his verdict; that the last question of the clerk was whether he said “No,” and he said “Yes.” All of the jurors, excepting Juror Woolley, who had been excused for several days, were in the courtroom awaiting call for the next ease. The court thereupon directed that all of the jurors be assembled in the jury box, and Juror Woolley be notified to report. Upon the appearance of Juror Woolley, all the jurors being in the box and the parties present, the court asked Juror Schmidt: “Did you agree to this verdict at the time it was signed by the foreman, and before the jury separated on Sunday?” He stated: “I submitted; yes.” To a further inquiry as to whether that was his verdict at the time it was signed by the foreman and sealed up, he stated: “In a sense it was, yes.” To a further inquiry as to whether the jurors so understood it, he said: “Yes; but, your honor — ” (He was interrupted by the court.) To a further inquiry he said: “When you put the question this morning that all those who were in favor of it say ‘Yes,’ and those who were opposed to it say ‘No,’ I answered ‘No.’ I said ‘No.’ ” Juror Schmidt further stated that the other jurors understood he was in favor of the verdict at the time it was signed by the foreman, and further said “that I submitted to it.” He later said: “I agreed; yes.”
    Counsel for the defendant asked that the juror be permitted to state whether he voluntarily agreed to this verdict,, and whether he now agrees to this as his verdict. This was denied. The defendant objected to the reception of the verdict, insisting “that no legal or valid verdict has been returned, upon which a judgment can be entered.” Counsel for the plaintiff stated the test to be: “Is this the verdict to which the jury agreed?” Objection of defendant was not.ed, the court stating that will be a matter for subsequent disposition by the court.
    Clarence L. Reames and H. S. Frye, both of Seattle, Wash., for .plaintiff.
    John H. Powell and Stephen V. Carey, both of Seattle, Wash., for defendant.
   NETERER, District Judge

(after stating the facts as above). All the authorities agree that the only verdict is that which the jury announces orally to the court, and is received and recorded as the jury’s finding. Kramer v. Kister, 187 Pa. 227, 40 A. 1008, 44 L. R. A. 432; Section 2635, Thompson on Trials; Hyatt on Trials, § 827; Abbott, Trial Briefs, p. 535. While it was agreed between counsel that the jury, when it agreed upon a verdict, shall cause it to be signed by the foreman, and to be sealed, and return to the court at a stated time the determination, such verdict was not finaL

Ia Scott v. Scott, 110 Pa. 387, 2 Atl. 531, the court said that where, on polling the jury, eleven jurors support the tendered verdict and one juror dissents, there is no verdict, and judgment cannot be entered thereon.

The court, in Lawrence v. Stearns, 11 Pick. (Mass.) 501, at 502, said: “If any one juror shall then express his dissent and persist in it, the verdict cannot be recorded.”

The Supreme Court of New York, in Root v. Sherwood, 6 John. 68, 5 Am. Dec. 191, said: “There is no verdict of any force but a public verdict, given openly in court; until it was received and recorded, it was no verdict, and the jury had a right to alter it as they may a private verdict. The previous agreement, that the jury might seal up their verdict did not take away from the parties the right to a public verdict, duly delivered. There being, then, no legal verdict in this ease, a new trial must be awarded.- * * * ”

Is the understanding of the trial judge as to the juror’s answer that it is his verdict, which is likewise the understanding as shown by the affidavits of five or six persons including the foreman of the jury, and upon which understanding the verdict is received and filed and the jurors discharged in the' case, final, if in fact it is immediately made apparent th^t the juror said “No” to the question whether “it is his verdict.”

I am satisfied that the jury could not be legally reconvened after being discharged from the ease. It is likewise fundamental that a juror may not impeach his verdict. At the time of the reception of the verdict, and before discharge in the case, I was fully convinced and understood that Juror Schmidt said it is his verdict, and he did not protest this understanding when the announcement was made, and the verdict ordered filed and the jurors excused; but from the disclosures made immediately after the discharge of the jury I am satisfied that, while Juror Schmidt agreed to the verdict, and all of the jurors understood he so agreed, befoye it was signed by the foreman, I am not now satisfied, however, that he did not dissent from the verdict at the time that the jury was polled.

A “verdict” is not the verdict of a dissenting juror, and such juror would not be es-topped, at the time and under the disclosed circumstances in this case, from stating the fact after the filing of the verdict upon such misunderstanding, unless the passive conduct and acquiescence of the juror estops him. I do not believe, from the circumstances in this case it would have that effect. No request was made by either party that the jurors be returned and directed to further de-: liberate. The jurors having separated after agreeing to the verdict, and thereafter reporting to the court, it is doubtful whether such a request would have borne any fruit-; the objection being of substance and not of form. See Humphries v. Dist. of Col., 174 U. S. 190, 19 S. Ct. 637, 43 L. Ed. 944; Wright v. Wright, 114 Iowa, 748, 87 N. W. 709, 55 L. R. A. 261, and-authorities above cited.

I think the motion for a new trial, upon the ground of the failure -of the jury to agree, must be granted. Upon all other grounds urged it is denied. A formal order may be presented.

Other authorities cited and examined: Clark v. Read, 5 N. J. Law, 560; Henderson v. State, 12 Tex. 531; Moss v. State, 152 Ala. 30, 44 So. 598; Bowen v. Bowen, 74 Ind. 470; Grimes Dry Goods Co. v. Malcolm, 164 U. S. 483, 17 S. Ct. 158, 41 L. Ed. 524; Warner v. R. Co., 52 N. Y. 437, 11 Am. Rep. 724; Rigg v. Cook, 4 Gilm. (Ill.) 336, 46 Am. Dec. 462; Martin v. Morelock, 32 Ill. 485; Stewart v. People, 23 Mich. 63, 9 Am. Rep. 78; Bishop v. Mugler, 33 Kan. 145, 5 P. 756; Rigg v. Bias, 44 Kan. 148, 24 P. 56; Owens v. Southern R. Co., 123 N. C. 183, 31 S. E. 383, 68 Am. St. Rep. 821; Proffatt, Jury Trials, § 449.