author: BRIGGLE, District Judge.

text:
    LACLEDE STEEL CO. et al. v. NEWTON et al.
    No. 1975.
    District Court, S. D. Illinois, S. D.
    April 25, 1934.
    Green & Verlie (by H. I. Green), of Alton, Ill., Oris Barth, of Urbana, Ill., Karl K. Hoagland, of Alton, Ill., and Lewis, Rice, Tucker, Allen & Chubb (by Joseph W. Lewis and Milton H. Tucker), of St. Louis, Mo., for plaintiffs.
    Manuel M. Wiseman, of Alton, Ill., and Munro Roberts, of St. Louis, Mo., for defendants.
   BRIGGLE, District Judge.

The Laclede Steel Company, a Missouri corporation, and the Laclede Tube Company, a Delaware corporation, filed their bill of complaint herein on January 19, 1934, against W. B. Newton and sixty-one other defendants^ all citizens of Illinois. The bill is voluminous, but after alleging the necessary jurisdictional facts, alleges among other things that both plaintiffs are the owners of manufacturing plants located near the city limits of Alton, in the county of Madison, Ill. The Steel Company is engaged in the manufacture and fabrication of steel, iron, and metal products; and the Tube Company is engaged in the manufacture of steel tubing. The Tube Company is a subsidiary of the Steel Company, and both are operated under one management and employ large numbers of men.

The bill alleges that both companies have accepted the code of fair competition in their respective industries, promulgated in pursuance of the National Industrial Recovery Act (48 Stat. 195), and have at all times complied with all the provisions thereof.

The bill alleges that the employees of the plaintiff companies organized and adopted the “Employees Representation Plan,” being an organization among the employees of their own choosing for the purpose of advancing thq interests of said employees; and that a large percentage of the employees of both companies became members of such organization.

The bill further alleges that the plaintiffs and their officers and employees have been subjected to violence, threats, and intimidation by the defendants and their associates; that on the 18th day of December, 1933, and at numerous times thereafter, until the filing of the bill herein, the defendants and large numbers of other people congregated at and near the plants of the plaintiff companies, and by threats and intimidation and by various acts of violence undertook to prevent the employees of the plaintiffs from entering or leaving their plants; and that in consequence thereof the employees of the plaintiff companies, in large numbers, remained inside the plants for several weeks, being unable to go to and from their homes.

The bill alleges that the defendants and others engaged in various forms of disorder, such as the hurling of rocks and other missiles and the discharge of firearms at the employees of plaintiffs, and into the buildings of the plaintiffs, and engaged in many other acts of violence not necessary to enumerate here.

The bill further alleges that this condition prevailed for a long time, and that the same was brought to the attention of the law enforcing officers of Madison county, Ill., the sheriff and state’s attorney, and the mayor and chief of police of the city of Alton; and alleges that said law enforcing officers were unwilling or unable to protect the property of the plaintiffs.

The bill alleges that the disorders in question were brought about largely by persons other than employees of the plaintiff companies, although some of the defendants had at former times been employees of the companies, and that a conspiracy existed among all of them to injure the property of plaintiffs and to harass and annoy and intimidate the employees of plaintiffs.

The bill alleges that unlawful acts have been threatened and have been committed, and other acts will be committed unless restrained, and that substantial and irreparable injury to plaintiffs’ property will follow; that as to each item of relief prayed, greater injury will be inflicted on plaintiffs by the denial of relief than will be inflicted on defendants by the granting of relief; that plaintiffs have no adequate remedy at law; and prays that the court will enjoin and restrain the defendants from the further prosecution of the unlawful acts complained of.

The verified bill of complaint having been presented to the court, a temporary stay order was issued on the 19th day of January, 1934, and hearing upon the matters set forth in the bill was set for January 34, 1934.

After due notice to all of the defendants, and after due notice to the mayor and chief of police of the city of Alton, and the sheriff and state’s attorney of Madison county, Ill., hearing was had on January 34, 1934, upon the matters alleged in said bill and on the motion of plaintiffs for a temporary injunction. Defendants appeared by their counsel and participated in such hearing, but offered no evidence to controvert the proof that was offered of the matters alleged in the bill. After full hearing a temporary injunction was ordered on the 25 th day of January, 1934, enjoining the defendants as prayed in the bill.

On March 1, 1934, the defendants filed their answer, which amounts to a general denial of the material allegations of the bill; and this cause came on for final hearing on March 27, 1934.

The testimony offered at the hearing on the motion for temporary injunction has, by stipulation, become a part of the evidence to be considered in the final determination of this cause, and in addition thereto numerous witnesses have been heard on behalf of both plaintiffs and defendants.

Without discussing the evidence in detail, it is sufficient to say that the evidence demonstrates beyond any possibility of doubt that various acts of violence were perpetrated, as alleged in the bill by the defendants and their associates. The record fully justifies the conclusion that the acts of the defendants went far beyond the scope of peaceful picketing and that the lives of the officials and employees of the plaintiff companies have been put in jeopardy and that the property of the companies has been damaged.

Assuming that this situation involves a “labor dispute” within the meaning of chapter 6, title 29 USCA, § 101 et seq., commonly known as the “Norris-La Guardia Act,” the principal question involved has become one of whether the plaintiffs, by their allegations and proofs, have brought themselves within the provisions of section 107 of this act, or, in other words, whether sufficient facts have been alleged and proven to confer jurisdiction on this court under this section.

Section 107 (section 7, Original Act) provides that:

“No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court, to the effect—

“(a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association, or organization making the threat or committing the unlawful act or actually authorizing or ratifying the same after actual knowledge thereof;

“(b) That substantial and irreparable injury to complainant’s property will follow;

“(c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief;

“(d) That complainant has no adequate remedy at law; and

“(e) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.

“Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to the chief of those public officials of the county and city within which the unlawful acts have been threatened or committed charged with the duty to protect complainant’s property: Provided, however, That if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant’s property will be unavoidable,, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing after notice. Such a temporary restraining order shall he effective for no longer than five days and shall become void at the expiration of said five days. No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney’s fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court. * * ”

That the proof amply justifies the findings contemplated under paragraphs (a), (b), (c), and (d) of this section has not been seriously challenged. That the proof further justifies the finding under paragraph (e) that the law enforcing officers of the city of Alton and of Madison county, HI., have either been unwilling or unable to protect plaintiffs’ property the court likewise entertains no doubt, but it is contended by defendants that under paragraph (e) of this section plaintiffs’ proof is lacking, in that there is no proof that the Governor of the State of Illinois has been unable or unwilling to furnish adequate protection to plaintiffs’ property. The defendants earnestly contend that “the public officers charged with the duty to protect complainant’s property” includes the chief executive of the state of Illinois. The plaintiffs, on the other hand, contend that this clause includes only the chief law enforcing officers of the city and county wherein the acts of violence are alleged to have occurred, and that there is no necessity for any showing of such inability or unwillingness on the part of the Governor of the State of Illinois.

No question of the validity or constitutionality of the act has been raised by the plaintiffs, but they have accepted the burden of compliance with its provisions, and the only question is whether, or not its fair construction, assuming it to he valid, requires a finding that the Governor, as well as the local peace officers, was unable or unwilling to furnish adequate protection to plaintiffs’ property.

It will be noted that in paragraph (e) there is a provision for giving personal notice of the hearing on the application for temporary injunction in such manner as the court shall direct to all known persons against whom relief is sought, and also to the “chief of those public officials of the County and City within which the unlawful acts have been threatened or committed, charged with the duty to protect complainant’s property.” This would seem to point the way to the proper construction of this paragraph, and to indicate what public officers were intended to be included therein. If the language “the public officers charged with the duty to protect complainant’s property” was intended to include the chief executive of the state, then there would seem to be no reason why he would not equally be entitled to the notice later provided for; and inasmuch as in the latter part of this section the “public officials” upon whom notice is required to he served are specifically mentioned, and the Governor is not included, it would seem that it was the intention of Congress specifically to exclude the chief 'executive of the state and to include only those public officials of the county and city within which the unlawful acts are alleged to have been committed.

We are without published judicial precedent upon the construction of this act, but if resort is had to the debates in Congress at the time the act was under consideration, it will be found that this construction is fully justified and expresses the intention of Congress.

After many hearings, the Judiciary Committee of the Senate, on February 4, 1932, submitted a report on the bill in question, recommending that the bill, with suggested amendments, be passed. In the form thus reported, section 7 (section 107, chapter 6, title 29 USCA) in its pertinent part reads as follows: “Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to those public officers charged with the duty to protect complainants property.”

Long and detailed debate then ensued regarding the scope and purpose of the language “those public officers charged with the duty to protect complainant’s property.” It was argued that the language was so broad as to he incapable of practical operation, and it was suggested that notice to the chief of those officers in the county or city where the acts of violence were said to have taken place would he sufficient to meet the purpose of the act. The discussions in Congress on this question are too voluminous to quote here, but reference is made to the Congressional Record of March 1, 1932, Volume 75, No. 61, pages 5156 to 5160, inclusive; and to Congressional Record March 8, 1932, page 5683. These dehates demonstrate that it was never the intention of Congress, even under the wording of the old section as reported by the Judiciary Committee, that the language should be given the broad construction now contended for by the defendants; but in order to clarify the matter this section was, with the acquiescence of its sponsors, amended to read as in its present form.

From a careful analysis of the debates in both the Senate and the House, it would seem that it was very clearly the intention of Congress that the term “public officers” referred to was intended to include only those of the county or city in which the alleged acts of violence arose, and not the chief executive of the state. Interpreting section 107 in the light of what was the apparent intention of Congress, the court holds that “public officers” as used in this section does not include the Governor of the state.

The court being convinced that the allegations and proof herein, in all other respects, meet the requirements of this act, decree for permanent injunction is) ordered. In reaching this conclusion, the court has not found it necessary to pass upon the validity or constitutionality of the act.


source: Caselaw Access Project

author: BYERS, District Judge.

license: Public Domain

text:
    In re CENTRONE COAL CO., Inc.
    No. 23754.
    District Court, E. D. New York.
    April 23, 1934.
    Howard W. Ameli, U. S. Atty:, of Brooklyn, N. V. (Emanuel Bubliek, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.
    Max E. Sanders, of New York City, for trustee.
   BYERS, District Judge.

The United States marshal for this district has procured an order to show cause, directed to the trustee in bankruptcy of Centrone Coal Company, Inc., a bankrupt, the object of which is to secure the discharge from the marshal’s custody of John Centrone, an officer of the bankrupt; the latter was heretofore adjudged guilty of contempt of court for failing to comply with an order of the referee directing .him to produce the books and records of the bankrupt concern. The said books have not been produced.

The order of apprehension was dated November 23,1933, and was executed on December 5, 1933, when Centrone was taken into custody and confined in the Queens county jail in this district. At that time the attorney for the trustee in bankruptcy paid to the marshal $3.50 for service fee, and $50.00 to be applied to the board and keep of Centrone. That sum was sufficient to board until January 23,1934, since which date no funds have been received to defray that expense, although requested. The trustee has refused to further assume the cost of board, and the marshal seeks to have Centrone released because he says there are no funds of the United States availáble to him for the support and upkeep involved.

The trustee opposes the motion, and relies upon sections 5536 and 5545 of the Revised Statutes (title 18 U. S. C. § 701 and § 703 [18 USCA §§ 701, 703]) in that behalf. The provisions are as follows:

“§ 701. Expenses for transportation and confinement of prisoners paid by United States. All the expenses attendant upon the transportation from place to place, and upon the temporary or permanent confinement of persons arrested or committed under the laws of the United States, as well as upon the execution of any sentence of a court thereof respecting them, shall be paid out of the Treasury of the United States in the manner provided by law.”
“§ 703. Actual reasonable cost of subsistence paid. There shall be allowed and paid by the Attorney General, for the subsistence of prisoners in the custody of any marshal of the "United States and the warden of the jail in the District of Columbia, such sum only as it reasonably and actually cost to subsist them. And it shall be the duty of the Attorney General to prescribe such regulations for the government of the marshals and the warden of the jail in the District of Columbia, in relation to their duties under this chapter, as will enable him to determine the actual and reasonable expenses incurred.”

The Bankruptcy Act is clearly one of “the laws of the United States,” within the contemplation of the first provision above quoted. Section 41 thereof, subdivision (b) [title 11 U. S. C. § 69(b), 11 USCA § 69(b)] is as follows:

“(b) The referee shall certify the facts to the judge, if any person shall do any of the things forbidden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and, if it is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed before the court of bankruptcy, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of, the court. (July 1, 1898, e. 541, § 41, 30 Stat. 556.)”

One of the things forbidden is to “neglect to produce, after haring been ordered to do so, any pertinent document.” Subdivision (a) of said section 41, 11 USCA § 69(a).

In U. S. ex rel. Paleais v. Moore (C. C. A.) 294 F. 852, there was an order adjudging a bankrupt to be in contempt for failure to produce books; it was said that the District Court (287 F. 879) had authority to enter the order appealed from. The review m the Circuit Court of Appeals was circumscribed because habeas corpus was there invoked, but the ease is clearly to the effect that, upon a proper showing, such an order is within the power of the District Court.

See, also, Oriel v. Russell, 278 U. S. 358, 49 S. Ct. 173, 73 L. Ed. 419.

In re Lenka (D. C.) 295 F. 570, is precisely in point, and construes the foregoing statutes to apply to a civil contempt committed by a bankrupt.

Nothing is suggested by the United States attorney appearing for the marshal on this motion, to impair the decision of Judge Garvin, or to indicate why a different rule should apply to this ease.

If one who is adjudged to be in contempt of court can evade the penalty involved, because of the fortuitous circumstance that he cannot be supported, while incarcerated, by the suitor at whose instance the order is obtained, then the process is so sterile as to be nugatory.

If that be the law, a higher court than this must declare it.

The motion will be denied, and an appropriate order to that effect will be signed upon presentation.


author: CAEEEY, District Judge.

text:
    UNITED STATES v. LAI SEE.
    District Court, S. D. New York.
    April 21, 1934.
    Martin Conboy, U. S. Atty., of New York City, and Irvin Rutter, Asst. U. S. Atty.', of New York City, for the United States.
    Edward A. Welti, of New York City (Herbert S. Siegal, of New York City, of counsel), for defendant.
   CAEEEY, District Judge.

According to his testimony, the defendant is about 34 years of age. According to that testimony he was bom either in 1899' or in 1900. It is stated by the witnesses that he left San Franeiseo soon after the earthquake. That would mean that he left there in approximately 1906 or 1907. It is said by the witnesses also that he came to New York immediately from San Franeiseo and has continuously resided here since. It is further stated by these witnesses, with a single exception mentioned later, that the information they have concerning the defendant came exclusively from a cousin of the defendant; that this cousin left New York for China in 1919; and that it was later reported from China that the cousin had died there.

If the defendant was bom in 1899 or 1900 and came to New York immediately following the earthquake, then (1) at the time of his arrival here, he was from 6 to 8 years of age; (2) at the time his cousin went back to China, he was 19 or 20 years of age. The results are also that (1) at the time of the death of his parents in the San Francisco earthquake he was 6 or 7 years of age; (2) he resided in New York where he was in contact with his cousin from the time he was 6 or 8 years old until he was 19 or 20.

One witness, Wong Ding, testifies that he lived next door to the parents of the defendant in San Franeiseo and recalls that the defendant was bom there. The only other witness, Moy Pone, has no information about the place of birth of the defendant save that he says that he heard a statement made by the cousin of the defendant during his lifetime, at some time prior to his leaving New York in 1919, that the defendant was bom in San Franeiseo.

It is unbelievable that a child 6 or 7 years of age at the time of the death of his parents, and particularly when they died as they did under such tragic circumstances as in the earthquake, and more especially a youth who thereafter had available to him as a continuous associate a cousin until he himself was of the age of 19 or 20, should have been without information concerning his parents to such extent that he did not even know their names, or their relationships, or that he did not remember anything about San Francisco where he claims he was bom. It is unbelievable.

It is understandable, when an official of the government, such as a Chinese inspector, interviews a Chinaman through an interpreter, that not everything he answers should be wholly consistent. I should not charge it against the defendant if in a number of respects there were inconsistencies between the statement first made to the inspector and the later statements, particularly if the inconsistencies were in minor respects or as to minor matters. When, however, there are disclaimers on-the part of the defendant so numerous as they are in this ease of having any knowledge of the matters inquired about, such as concerning his parents and their relations and the circumstances out in San Franeiseo, it then- becomes of significance that he makes those disclaimers.

If there were nothing else in the ease but the testimony as given by the defendant himself before the inspector and in advance of a time when he had had opportunity to prepare what his answers would be, there would be enough to create a very strong doubt as to the truthfulness of his testimony. That doubt is not removed by anything testified by either of the witnesses who were produced and have testified on the stand today. On the contrary, there are a great many respects in which neither of those witnesses testified satisfactorily.

It must be borne in mind that it is inher-' ently difficult for the government to produce witnesses who can testify specifically with respect to Chinese who are in the country. This is familiar knowledge to the courts. Indeed, it is familiar knowledge to anybody who has had any dealings with the p.c.-jlems of getting at the truth in regard to the coming and other circumstances affecting the residence of Chinese in the country. For that reason the Congress of the United States had made a rule as to proof on the subject. This rule is that a person of Chinese descent who is in this country must satisfy the authorities, including the court, as to- his right to be here.

On the ground stated also the answers given by a Chinese when first inquired of become of very great significance. In the nature of things when such inquiries are first made, there has probably not been opportunity to prepare for the answers; there has not then been anticipation of just what the inquiries will be at a later stage or where they will lead after the elapse of weeks or months subsequent to the arrest and in advance of a hearing held before the United States Commissioner or before the court.

Prior to a hearing such as has been in progress today, there has occurred opportunity to shape up a statement and to make the effort to bring it into accord with what testimony other witnesses in the meantime can have been procured to give.

For the reason particularly that there are vital conflicts in so many respects between the testimony given by the defendant to the inspector in August, 1933, when he was first examined, and the subsequent testimony given by himself and by his witnesses, I do not believe the testimony that the defendant was bom in the United States. I feel bound to say that the testimony has been insufficient to satisfy me that he was bom in the United States.

The result is that the decision of the United States Commissioner must be affirmed and an appropriate order may be taken for the deportation of the defendant from the United States.


author: KENNERLY, District Judge.

text:
    PHILLIPS v. WEST PRODUCTION CO. et al.
    No. 1174.
    District Court, S. D. Texas, Galveston Division.
    April 11, 1934.
    C. A. Teagle and L. A. Kottwitz, both of Houston, Tex., for plaintiff.
    Baker, Botts, Andrews & Wharton, C. R. Wharton, Platt, West & Stevenson, Jno. E. Green, Jr., David Proctor, and Claud Me-Caleb, all of Houston, Tex., D. R. Peareson, of Richmond, Tex., and Wm. H. Wilson, Harry Holmes, R. E. Seagler, Ross, Wood, Lawler & Wood, R. Wayne Lawler, and J. E. Price, all of Houston, Tex., for defendants.
   KENNERLY, District Judge.

May 11, 1933, plaintiff sued defendants in trespass to try title under the Texas statutes (articles 7364 to 7491, Texas Revised Civil Statutes 1925) for an undivided one-half interest in 1,197 acres of land out of the John Rabb league in Port Bend county, Tex., in this district and division, and for the value of certain oil, etc., it is. alleged defendants took therefrom. Jurisdiction is alleged under subdivision (b) of subsection 1 of section 41 of title 28 USCA.

In June, 1933, defendants, Gulf Production Company, Humble Oil & Refining Company, and H. R. Cullen, filed general demurrers, pleas of not guilty (article 7372 of such Statutes), and certain pleas of limitations. The demurrers not having been brought on for hearing under District Court Rule 25, and not having been disposed of at the term of court at whieh filed, will be regarded as abandoned.

June 2, 1933, the West Production Company and J. W. West filed general demurrer, plea of not guilty, and certain pleas of limitations, following same with an allegation that plaintiff’s title, if any, to such interest in the land, was at its inception, and is now, an equitable title, and that, at the time such defendants West Production Company and J. M. West acquired their rights to the land, they paid value, and had no notice of plaintiff’s title. Such demurrer not having been brought on for hearing under District Court Rule 25, and not having been disposed of at the term of court at which filed, will likewise be regarded as abandoned.

The defendants Hiland P. Lockwood and Alex A. Sharp filed their pleadings January 8, 1934, that being the first' day of the present term of this court in this division. Such pleadings contain several special exceptions, general demurrer, plea of not guilty, and certain pleas of limitations. The special exceptions and general demurrer having been on file more than three months, and this case having been continued by agreement for this term of court, and standing set for trial on the merits during the next term of court (June 6, 1934), and such exceptions and demurrer not having been brought on for hearing under District Court Rule 25, I take it that it is safe to assume that the^e defendants have abandoned them.

On March 22, 1934, defendant, West Production Company filed a “Plea in Abatement and Motion to Dismiss.” This appeared on the motion calendar April 2, 1934, accompanied by the brief of the West Production Company, brief of plaintiff, and a reply brief by all defendants. The • statement is made in a letter accompanying the briefs that the other defendants have filed or will file similar pleas in abatement and motions to dismiss, and that disposition of such plea and motion of the West Production Company will dispose of such pleas and motions of the other defendants. This is a hearing under District Court Rule 26 of such plea and motion of West Production Company.

1. Plaintiff says that such plea and motion come too late after the West Production Company’s answer to the merits. Under the Conformity Act (section 724, title 28 USCA), and the practice in the courts of Texas in like causes, this is probably true of pleas in abatement, etc., as that term is generally regarded and understood. This is not, however, such a pleading. It is rather a pleading under section 397, title 28 USCA, to obtain the ruling of the court, in advance of the trial on the merits, on the question of whether this ease is cognizable at law or in equity. So regarded, it is proper for such plea and motion now to be considered by the court. Schoenthal v. Irving Trust Co., 287 U. S. 97, 53 S. Ct. 50, 77 L. Ed. 189.

2. Defendant, in such pleading, claims that plaintiff’s title is an equitable one, and that plaintiff may not prosecute thereon this action at law. Defendant asks the court to hear evidence to sustain its claim, but produces none (see District Court Rule 25, amended rules of January 1, 1934). But for the admissions' of plaintiff in her brief, it would be necessary to dismiss the matter as not properly submitted. District Court Rule 25f.

3. Plaintiff’s admissions in her brief are as follows:

“The facts will show that Chauncey M. Richardson was married to M. G. Richardson. That Ruttersville College conveyed the southwest one-fourth of the Rabb League to M. G. Richardson, the wife. Chauncey died, leaving a will by which he gave to his wife, during her natural life all of his property and at the decease of his wife it was to go to his daughter, Ann Sophia. Mrs. Richardson, the surviving wife, married Henry Van Bibben, and thereafter Martha Richardson Van Bibben, the surviving wife of Chauncey M. Richardson, conveys this southwest one-fourth to R. H. Leigh. Henry Van Bibben died, leaving his wife, Mrs. Martha Richardson Van Bibben surviving him.
“Ann Sophia Richardson, who had been bequeathed Richardson’s community interest in the land, married Wm. S. Bassett; she died, leaving her husband, William S. Bassett, surviving her. There was.one child born of this marriage, who is the plaintiff in this case.”

Presumably defendants claim under Leigh.

It has long been the rule in Texas that a title of the "kind here asserted by plaintiff is an equitable one. Turner v. California Co. (C. C. A.) 54 F.(2d) 552, 553, and cases there cited and discussed.

Since Bennett v. Butterworth, 11 How. (52 U. S.) 675, 13 L. Ed. 862 (a Texas ease), it has been the rule that one holding and claiming under an equitable title, such as this, may not maintain an action in ejectment (trespass to try title) such as this, in a federal court. Fenn v. Holme, 21 How. (62 U. S.) 486, 16 L. Ed. 200; Johnson v. Christian, 128 U. S. 379, 9 S. Ct. 87, 32 L. Ed. 413; Hooper v. Scheimer, 23 How. (64 U. S.) 248, 16 L. Ed. 452; Langdon v. Sherwood, 124 U. S. 79, 8 S. Ct. 429, 31 L. Ed. 345.

The rule is well stated in Kircher v. Murray (C. C.) 54 F. 617, 626 (a Texas case quite similar to this one).

It follows that the case must he transferred to the equity side. Liberty Oil Co. v. Condon Bank, 260 U. S. 242, 43 S. Ct. 118, 67 L. Ed. 235.

Let an order be prepared and presented accordingly/ and also directing the necessary amendment of the pleadings within a time fixed.


author: WOOLSEY, District Judge.

text:
    MILLER v. VAN SCHAICK, Superintendent of Insurance, et al.
    District Court, S. D. New York.
    April 16, 1934.

      Louis F. Reed, of New York City (Charles A. Boston and Edward C. Bailly, both of New York City, of counsel), for plaintiff.
    Cabell, Ignatius & Lown, of New York City (Hartwell Cabell, Milton B. Ignatius, and M. H. Blinken, all of New York City, of counsel), for defendant George S. Van Sehaiek.
    Hartwell Cabell, Milton B. Ignatius, and L. A. Stone, all of New York City, for defendant National Surety Corporation.
    Milton B. Ignatius, of New York City, for defendants Edwin G. Davis and Aaron Rabinowitz, ancillary receivers of Greyling Realty Corporation.
    Kaye, MeDavitt & Seholer, of New York City (Jacob Seholer, of New York City, of counsel), for defendant Manufacturers’ Trust Co.
    C. S. Dikeman, of New York City, for defendant National Realty Management Co.
    McNamara & Seymour, of New York City (Raymond" B. Seymour, of New York City, of counsel), for defendant Empire Trust Co.
    Wise, Shepard & Houghton, of New York City (Walter W. Malone, of New York City, of counsel), for defendant Continental Bank & Trust Co.
    Cook, Nathan & Lehman, of New York City (Arthur J. Kramer and Mortimer Brenner, both of New York City, of counsel), for defendant Marine Midland Trust Co.
    Hays, Wolf, Kaufman & Schwabacher, of New York City (Ralph Wolf and Wolfgang Schwabacher, both of New York City, of counsel), for the Reorganization Committee in charge of the Reorganization of the Mortgage Securities guaranteed by National Surety Co., amici curias.
    Charles A. Roberts, of New York City, for Reorganization Finance Corporation, amicus curias.
    Charles L. Woody, of New York City, for Investment Securities Co. of Texas, amicus curiae.
   WOOLSEY, District Judge.

The plaintiff’s motion for the appointment of a receiver pendente lite is in all respects denied.

The motion in behalf of George S. Van Schaick, superintendent of insurance of the state of New York, to dismiss the bill of complaint on the ground that the plaintiff has no locus standi in equity under the circumstances shown is granted.

The motion in behalf of the National Surety Company to dismiss the bill of complaint on the ground that the plaintiff has no locus standi in equity under the circumstances shown is granted.

The motion in behalf of the National Surety Corporation to dismiss the bill of complaint on the ground that the plaintiff has no locus standi in equity under the circumstances shown is granted.

The motion in behalf of the receivers of the Greyling Realty Corporation to dismiss the bill of complaint on the ground that no leave has been given to bring suit against them or the Greyling Realty Corporation is granted.

I. This bill of complaint includes in its box the names of fifty defendants, if I have correctly counted them. Of those fifty defendants, this court, on the plaintiff’s own showing, secured personal jurisdiction of the following named only: George S. Van Schaick, National Surety Company, National Surety Corporation, National Realty Management Company, Greyling Realty Corporation, Manufacturers’ Trust Company, Continental Bank & Trust Company, Marine Midland Trust Company, and Empire Trust Company.

Consequently, the caption is most misleading, and the first step in this proceeding must be, in the way of housekeeping, to instruct the clerk of this court, and he hereby is instructed, that the caption in this ease be changed so that the caption will read as at the head of this opinion, and this court wall not be troubled with a long list of defendants over whom it has not personal jurisdiction, and, unless they voluntarily appear, probably cannot get such jurisdiction.

II. In regard to their relationship with the plaintiff the defendants fall into two categories:

Vis-a-vis the National Surety Company and, consequently, its assets — whether presently in the hands of the superintendent of insurance of the state of New York or in the hands of the National Surety Corporation or elsewhere — the plaintiff is a simple contract creditor of the National Surety Company, for that company was a mere guarantor of bonds, secured by real estate mortgages, which the plaintiff claims to own.

Vis-á-vis the several trust companies holding mortgages under trust indentures he conceivably might have a locus standi in a proper ease because he is claiming, so far as I can understand the bill of complaint, that the several trust company defendants who are now before me have been guilty of breaches of their several trusts, which might, under certain circumstances, enable him to claim that they had become trustees ex maleficio in breach of their indenture obliga^ tions and thus enable the plaintiff to proceed directly against them in his own behalf, in disregard of the provisions of the trust indentures because he would not be purporting to act under said indentures.

III. As a simple contract creditor of the National Surety Company, the plaintiff has not any locus standi to maintain a creditor’s bill against the National Surety Company and secure a receiver of its assets.

This was definitely settled by the decision of the Supreme Court in Pusey & Jones Company v. Hanssen, 261 U. S. 491, 43 S. Ct. 454, 67 L. Ed. 763, where the question was whether, on the application of an unsecured simple contract creditor, a federal court, sitting in equity, had jurisdiction to appoint a receiver owing to the provisions of a Delaware statute. The federal court below had appointed a receiver without the corporation’s consent. The order of appointment was reversed, and, in dealing with the general principle as to the appointment of a receiver in equity, Mr. Justice Brandéis said, Id., 261 U. S. at page 497, 43 S. Ct. 454, 455, 67 L. Ed. 763: “A receiver is often appointed upon application of a secured creditor who fears that his security will be wasted. Kountze v. Omaha Hotel Co., 107 U. S. 378, 395, 2 S. Ct. 911, 27 L. Ed. 609. A receiver is often appointed upon application of a judgment creditor who has exhausted his legal remedy. See White v. Ewing, 159 U. S. 36, 15 S. Ct. 1018, 40 L. Ed. 67. But an unsecured simple contract creditor has, in the absence of statute, no substantive right, legal or equitable, in or to the property of his debtor. This is true, whatever the nature of the property, and although the debtor is a corporation and insolvent. The only substantive right of a simple contract creditor is to have his debt paid in due course. His adjective right is, ordinarily, at law. He has no right whatsoever in equity until he has exhausted his legal remedy. After execution upon a judgment recovered at law has been returned unsatisfied, he may proceed in equity by a creditors’ bill. Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 14 S. Ct. 127, 37 L. Ed. 1113. Compare Swan Land & Cattle Co. v. Frank, 148 U. S. 603, 13 S. Ct. 691, 37 L. Ed. 577; National Tube Works Co. v. Ballou, 146 U. S. 517, 13 S. Ct. 165, 36 L. Ed. 1070; Pierce v. United States, 255 U. S. 398, 403, 41 S. Ct. 365, 65 L. Ed. 697. He may, by such a bill, remove any obstacle to satisfy his execution at law, or may reach assets equitable in their nature, or he may provisionally protect his debtor’s property from misappropriation or waste, by means either of an injunction or a receiver. Whether the debtor be an individual or a corporation, the appointment of a receiver is merely an ancillary and incidental remedy. A receivership is not final relief. The appointment determines no substantive right. * * * It is a means of preserving property which may ultimately be applied toward the satisfaction of substantive rights.”

After pointing out that a remedial right to proceed in a federal court, sitting in equity, cannot be enlarged or diminished by a state statute and distinguishing bankruptcy eases from equity cases, Mr. Justice Brandéis said, at pages 500, 501 of 261 U. S., 43 S. Ct. 454, 457: “The case at bar is also unlike In re Metropolitan Railway Receivership, 208 U. S. 90, 109, 110, 28 S. Ct. 219, 52 L. Ed. 403, and many others, in which there was express consent hy the corporation to the appointment of the receiver, or where the indebtedness to plaintiff and the corporation’s insolvency were admitted, or the lack of jurisdiction in equity was waived. The objection that the bill does not make a case properly cognizable in a court of equity does not go to its jurisdiction as a federal court. Smith v. McKay, 161 U. S. 355, 16 S. Ct. 490, 40 L. Ed. 731; Blythe v. Hinckley, 173 U. S. 501, 19 S. Ct. 497, 43 L. Ed. 783. The objection may, as pointed out in Reynes v. Dumont, 130 U. S. 354, 395, 9 S. Ct. 486, 32 L. Ed. 934, be taken by the court of its own motion. But, unlike lack of jurisdiction as a federal court, Mansfield, Goldwater & Lake Michigan Ry. Co. v. Swan, 111 U. S. 379, 382, 4 S. Ct. 510, 28 L. Ed. 462, lack of equity jurisdiction (if not objected to by a defendant) may be ignored by the court, in cases where the subject-matter of the suit is of a class of which a court of equity has jurisdiction. And where the defendant has expressly consented to action by the court, or has failed to object seasonably, the objection will- be treated as waived. Brown, Bonnell & Co. v. Lake Superior Iron Co., 134 U. S. 530, 535, 536, 10 S. Ct. 604, 33 L. Ed. 1021; Southern Pacific R. R. Co. v. United States (No. 1), 200 U. S. 341, 349, 26 S. Ct. 296, 50 L. Ed. 507. In cases relied upon by respondent there was such waiver. But, here, the company strenuously insisted throughout upon the absence of jurisdiction and denied every material allegation on which it is sought to support the bill.”

The relation between the plaintiff and the National Surety Company is based on a guaranty given by the National Surety Company of the payment of the principal and interest of certain mortgages which were held under trust indentures by various trust companies mentioned in the complaint. The National Surety Company never had, and has not now, possession of these mortgages, and, consequently, as the persons presently in possession of its former assets, far from consenting to the appointment of any receiver by this court, object strongly to such an appointment, I do not think that there is any possible theory on which the plaintiff could be considered to have any locus standi as against the assets of the National Surety Company wherever they may now be, or to the appointment of a receiver of those assets. Such an appointment could not be worked out on any theory other than that a simple contract creditor is entitled to come into equity and ask for the appointment of a receiver non obstante on objection by the defendants against whom he brings his bill.

Thus I do not find it necessary to consider the perhaps somewhat controversial question as to the precise juridical status, as a receiver, of the superintendent of insurance of the state of New York.

But I might make the observation in this connection that, if there ever was a controversy involving a reorganization of a complicated situation which cried out for unitary control, it certainly is this situation, and the idea of appointing a receiver in equity, which would necessarily be followed by other equity receiverships, under what are often incorrectly described as ancillary bills, shocks common sense, for it would be to disintegrate a situation which I am satisfied, on the papers before me, is now being dealt with, so far as I am able to judge, honestly, diligently, and wisely.

If it were not for the proceedings here before me, I should suppose that it would be needless to add that, if the plaintiff has any complaint as to any matter involved in the rehabilitation, the Supreme Court of the state of New York is open to him, and he can proceed there in the rehabilitation proceedings, except in so far as his situation may be subject to a possible plea of res adjudicata under the decision of the New York Court of Appeals handed down ' on March 20, 1934, 191 N. E. 521, affirming In the Matter of National Surety Company, 239 App. Div. 490, 268 N. Y. S. 88.

IV. A receivership is perhaps the most drastic interlocutory remedy which a court of equity has power to grant, and this power should be sparingly exercised. The granting of a receivership is purely discretionary, and it should not be granted over the opposition of a defendant except in the clearest possible ease, and here the plaintiff’s ease for such relief certainly falls far short of that requirement.

As I have elsewhere had occasion to say, the reports known as Federal Cases are a gold mine of valuable precedent and information for the diligent. In the ease of Haines et al. v. Carpenter, 1 Woods, 262, 11 Fed. Cas. 168, No. 5,905, cited in the brief filed on behalf of the Reorganization Committee, I find a case which is structurally sufficiently analogous to the present cause, in so far as the trust companies are concerned, to indicate the technique of approach to the decision thereof.

In the ease just referred to, Mr. Justice Woods of the Supreme Court, then a Circuit Judge, said in 11 Fed. Cas. 168, at page 169:

“The first question to be considered is:. Ought the court, upon the ease made, to appoint a receiver? The party in possession of the property for which a receiver is asked is the executor named in the will of the testatrix, who has qualified in the probate court and given bond for the faithful discharge of his trust. Under these circumstances the court should not displace him upon light grounds. Beverley v. Brooke, 4 Grat. [45 Va.] 208. And though a suit be instituted by a party having an interest in the estate, it does not follow that the trust created by the testator is to be set aside. A strong case must be made out to induce the court to dispossess a trustee or executor who is willing to act. Kerr, Rec. 19; Smith v. Smith, 2 Younge & C. Ex. 361; Bainbridge v. Blair, 4 Law J. Ch. 207. The grounds upon which this court is asked to dispossess the executor and turn over the property of the succession to a trustee are, that Carpenter, the executor, is unfit and incompetent to manage and successfully control the estate; that he has only cultivated a part of the land susceptible of cultivation, when, in the opinion of the complainants, all of it should have been cultivated; that he is endeavoring to defeat the bequest to the said Baptist Church, by depreciating the value of the estate, and that he is confederating with said Elias S. Dennis to institute fictitious suits against the estate in order to sweep away its assets. These charges are not directly made, but are stated on the information and belief of complainants, and they are not supported by a single affidavit to any fact. The application to appoint a receiver must be supported by evidence showing that the appointment is necessary. Middleton v. Dodswell, 13 Ves. 266.

“There is absolutely no testimony to support the application in this ease. It is true that one of the complainants swears to the' bill, but in doing so he only swears that he has been informed of and believes certain statements in his bill. This is not evidence, and gives no support to the application. The fact is that the court is asked to appoint a receiver in this ease on mere rumor, without any proof showing the necessity of the appointment. But even if the fact were established that the trust property was in danger, that of itself would not be sufficient. It must be further shown that the party in possession is irresponsible. Willis v. Corlies, 2 Edw. Ch. [N. Y.] 281; Clark v. Ridgely, 1 Md. Ch. 70; Blondheim v. Moore, 11 Md. 365; Burt v. Burt, 41 N. Y. 46; Haggarty v. Pittman, 1 Paige [N. Y.] 298 [19 Am. Dec. 434], There is no proof that the executor is irresponsible, or his bond insufficient, nor is there any averment in the bill to that effect. The motion for a receiver must therefore be overruled.”

In the present case, the plaintiff and other persons who state that they will be willing to intervene in this case on the plaintiff’s side, and claim to be owners of bonds similar to his, have, in their affidavits, given a list of the bonds which they own and the trust indentures under which the said bonds were issued.

The trust companies who are defendants before me herein, not only deny categorically any breaches of the indentures of trust under which they hold any of the mortgages which were guaranteed by the National Surety Company, but also deny that they are concerned in any way with any trust indentures by which the bonds listed by the plaintiff as owned by him are secured.

The Empire Trust Company, the Continental Bank & Trust Company, the Marine Midland Trust Company, deny that they are trustees of any indentures under which any of the bonds listed by the plaintiff’s affiants are secured.

Of the bonds claimed to be owned by the Sun Life Insurance Company of America and not by the plaintiff, the Manufacturers’ Trust Company admits that there are $30,-000 principal face amount of bonds issued by the Mortgage Guarantee Company under an indenture on which it is trustee, and $5,000 principal face amount of the bonds of the Meline Mortgage Company issued under an indenture on which it is trustee. The Sun Life Insurance Company of America is not now a party to the present cause.

It is perfectly obvious that, in the face of the affidavits for the defendant trust companies which are all made by persons who have knowledge of the facts and are not made merely on information and belief as is the complaint, it would be a gross abuse of discretion for me to appoint a receiver and displace trustees against whom no wrongdoing has been made out even by a preponderance of affidavit proof, and, on the face of the papers before me, have not any relationship either in law, equity, or morals with the plaintiff so far as the matters involved here are concerned.

It must also be remembered that I am discussing this matter from a point of view most favorable to the plaintiff in so far as his locus standi to maintain this suit as against the trust companies is concerned. For each bond incorporates by reference the indenture under which it was issued, and each indenture prescribes an elaborate procedure to be followed before action, independent of the trustee, may be taken by the bondholders. That prescribed procedure has not been followed by the plaintiff here, and, consequently, he would not be able individually to maintain any locus standi if he were proceeding under the indentures.

But I am assuming without deciding, for there are high authorities to the contrary, cf. Home Mortgage Co. v. Ramsey, 49 F.(2d) 738, 743 (C. C. A. 4), that, if the plaintiff’s claim against fee trust companies is that they are fiduciaries who by their acts have become trustees ex maleficio, he may possibly be able to proceed directly against them on the theory that he is not proceeding under the indentures, but, as it might perhaps he expressed, for alleged equitable wrongs springing out of the relation between them and the plaintiff created by the indentures.

V. As for the claim against the Greyling Realty Corporation, this court has already appointed receivers of that corporation, and the plaintiff is in. contempt of this court for having, by commencing this suit against it, violated the injunction outstanding in the receivership order under which they were appointed. He claims ignorance of the injunction, and I am giving him the benefit of the doubt iu holding him in technical contempt only. But he must be punished for that contempt, and the punishment therefor, which I hereby fix, is a dismissal of the complaint as against the Greyling Realty Corporation.

YI. Each decree of dismissal herein granted may carry costs of the defendant in whose favor it runs.

I understand that I cannot, and so I do not, grant costs against the plaintiff on its motion for the appointment of receivers. I wish it were otherwise, and that the salutary English rule prevailed in this country whereby counsel fees and disbursements may he taxed against a losing party, for eertainly this is a case in which such full costs should be allowed to the defendants.

Settle order on notice.


author: GEIGER, District Judge.

text:
    In re HACKETT, HOFF & THIERMANN, Inc. KALT-ZIMMERS MFG. CO. v. MARINE NAT. EXCHANGE BANK et al.
    District Court, E. D. Wisconsin.
    June 15, 1933.
    Fish, Marshutz & Hoffman, of Milwaukee, Wis., for Kalt-Zimmers Mfg. Co.
    Kaumheimer & Kaumheimer, of Milwaukee, Wis., for Marine Nat. Bank.
    Geo. A. Affeldt, of Milwaukee, Wis., for West Side Bank.
   GEIGER, District Judge.

The two banks, Marine National Exchange Bank and West Side Bank, are in possession of bonds pledged to them respectively by the bankrupt to secure personal loans. The question at issue is the right of the banks to hold them by virtue of the pledge.

Apparently, the petitioning banks assume that if the bonds are negotiable the question tendered by Kalt-Zimmers Manufacturing Company must he answered in the negative.

My consideration of the matter leads me to reject the conclusion, even if the assumption be granted. By that is meant that even if the bonds be negotiable in form and in fact, it does not follow that the bankrupt, because of that fact alone, could validly negotiate them in any and in every way. Plainly, inquiry respecting the bankrupt’s real relationship to such bonds — known to or knowable by a transferee — cannot be foreclosed by the mere fact of their general negotiable character, even if there be added general good faith, value given on transfer, and claimed ordinary eourse attending the transfer. Therefore, it has seemed to me that proof of some kind bearing upon the bankrupt’s real relationship thereto, as affecting claimed rightful negotiation, was receivable to consider and determine the latter as a basic inquiry. Whether we term the relationship’ as a real estate mortgage trust, or something else, and include the somewhat general and at times vague idea of “underwriting,” we recur to the necessity of inquiry respecting the bankrupt’s relation to these bonds; and, if found to be fiduciary, whether knowledge thereof is chargeable to the petitioning bankers. This basic inquiry must start with an examination of the bonds and their securing mortgage. It may be conceded that upon such examination there is disclosed a power of the bankrupt trustee to “negotiate” and “sell” the bonds for some purpose. It may be particularly further conceded that if the bankrupt either owned the bonds in its individual right, or, if not, it could sell them in its capacity as trustee pursuant to power granted. In either event, purchase could be made without peril. The fact of ownership, whether it be known or unknown to the purchaser, would control in the one, as would the undoubted trust power to sell in the other. The purchaser would be protected. The trust power for that purpose being adequately granted alone suffices for purposes of sale.

Therefore the inquiry may assume this form: Do the bonds and their securing mortgage — including also the underwriting agreement — on their face disclose a limitation on power of disposition of such bonds? This, it may be true, is merely another form of stating our earlier inquiry respecting the bankrupt’s relationship. It would seem manifest that when bonds which are held, that is, in the possession of one seeking to dispose of them, refer to the latter as a “trustee” under a “mortgage or deed of trust” to which deed “reference is hereby made with the same effect as though recited at length herein” for (1) the description of the property mortgaged, (2) the nature and extent of the security, (3) the rights of the holders of the bonds, and (4) the “terms and conditions upon which the said bonds are issued/, held and secured,” the purpose of the recital and reference is entirely clear. As was suggested upon oral argument, the tender of such a bond by its holder or bearer, to any one, hardly left the latter in a position to refuse to see what was on its face, or to fail or refuse to inquire what it all meant with respect to issuance, holding, or security; or with respect to the power to negotiate or sell. In the case before us, the emphasis arises out of the fact that, upon such face of the bond (and its reference), the herein bankrupt trustee is shown to have other than a mere individual relationship. I believe that the duty was east upon the one to whom they were tendered, no matter how clearly their negotiability in case of attempted transfer in execution of a fiduciary power, or negotiation by sale in case of individual ownership^ may otherwise appear from the instrument; that is to say, the fact of negotiability within limited range is not the sole determiner of a right of a trustee to transfer property once it appears clearly that an individual and not a trust purpose is sought to be carried out. Therefore, conceding that if the bonds had a trust status they could be sold in execution of trust powers, they are still left outside of the trust or any of its powers when it appears there is a non-trust purpose to “negotiate”; that is, a pledge for the person of the trustee. The infirmity of the banks’ position arises out of their knowledge that the bankrupt trustee was tendering the bonds for its personal benefit. In my judgment such infirmity is declared upon principle of trust powers — or as Justice Story put it, in the “stubborn rule of equity” forbidding trustees (and all who know of the trust) from dealing in trust property for the personal benefit of the former. And I do not believe the Negotiable Instruments Law, nor the uniform acts passed by the states, override or impair that principle. The ease of Pollard v. Tobin, 211 Wis. 495, 247 N. W. 453, decided by the Supreme Court of Wisconsin, does not, and in my judgment cannot, preclude the application and enforcement of such principle in the federal courts. The infirmity here is not met by the circumstance that the bonds are payable to “bearer”; but as I conceive, it is created by the facts known to the transferee (1) that the bankrupt was a “bearer,” in trust, and (2) transferred, by way of pledge for his personal benefit in defiance of the trust. Those facts, within the principle of equity relied upon, preclude the right of transferees to assert that they chose to ignore them or that they ignored them in good faith, or for value, or in due course. And with great respect, I cannot accept the decision in the Pollard Case as justifying the transfers here challenged.

An order may be entered reversing the decision of the referee.


author: ATWELL, District Judge.

text:
    NATIONAL PIGMENTS & CHEMICAL CO. v. MID-CONTINENT MUD CO. et al.
    No. 530.
    District Court, S. D. Texas, Houston Division.
    March 6, 1934.
    John H. Bruninga, of St. Louis, Mo., and Frank C. Jones, of Houston, Tex., for complainant.
    King, Wood & Morrow, Sam Holliday and Andrews, Streetman, Logue & Mobley, all of Houston, Tex., for respondents.
   ATWELL, District Judge.

Complainant is the owner of a patent secured by Stroud for the controlling of troublesome gas which frequently appears in the drilling of oil and gas wells. The fluid not only controls and subjugates the gas, but acts as a lubricant and a strengthener of the walls of the well.

The court always approaches the solution of a controversy of this sort with tender care, since in one ease he denies to the public the use of a certain article, or in the other ease he denies to an alleged inventor the legitimate fruit of his thought and experience. In view of the decision of Judge Dawkins (National Pigments & Chemical Co. v. Shreveport Chemical Co. (D. C.) 1 F. Supp. 417), which the court has considered not only upon the facts therein recited, but also with reference to the authorities, I think it unnecessary to repeat what he has so well set forth. I do not find either in the purpose of the Stockfiseh patent or in the operation thereof, if, as has been suggested, it may be operative, and I do not mean to say by that that it cannot be operated, that there is any anticipation of the Stroud proclamation. Unmistakably, Mr. Stockfiseh depended upon agitation for his suspension, and unmistakably he was advising how to fashion a concrete-formed wall, and unmistakably his column fluid was to prevent caving. The difficulty that I found in reading that patent is as to its applicability to the second situation which he discovered and whether or not cuttings were in his mind, and what should become of them; then, too, whether it is persuasive to others or not, the claim, as narrow as we may find it to be, that was recognized by the same patent authorities in Germany, at least to that extent finds no anticipation by Stockfiseh as against Stroud, because that office recognized Mr. Stroud’s discovery. It is quite true, probably, that the acute mind, the studious mind, fine in logic, and almost undefined in its ability to go into things, may probably appropriately conclude that what that office granted to Mr. Stroud was a suspensoid of the character which he claimed to have discovered. With reference to that particular matter, I am not at all sure that we do any violence to the claim of Mr. Stroud when we concede, as must be conceded, that theoretically his substanee barytes may not be a true scientific or physical suspensoid, but I believe the testimony justifies the court in finding that it is a practical suspensoid. I mean by “practical suspensoid” a material that may be used by the driller which is so like that which is found in the clay as to become somewhat of a union with it; and, secondly, perhaps if it were fine enough, it might operate alone, that is,- if it were fine enough to make a mud. I would not like to say that it would not operate alone. But we do not have to go that far because at all times and in all places he puts it with a mud. However, as I have already indicated, I think that while Judge Dawkins is not as critical, probably, with reference to that as the learning displayed here by counsel on both sides has forced the court into becoming', I do believe that his conclusion is sound, that is, that the Stoekfiseh, as I have already said, was not an anticipation of the Stroud.

I have had a little more trouble with prior uses. We must bear in mind, of course, that such anticipatory uses as render invalid a patent must be clear and satisfactory beyond any reasonable doubt. I am not sure that that is the exact language of the decisions, but that is it in substance as I recall it. Of course, a reasonable doubt means a doubt based on reason. It means if one were called upon to act upon such certainty of proof that that one would act in his own most serious private affairs. It does not mean proof to a mathematical certainty nor proof beyond the possibility of a mistake. It merely means that crystallizing of the mind that hears that would warrant that mind and drive that mind to act with reference to that mind’s own, as I have already said, most serious private affairs. Here testimony has been offered of a number of witnesses respecting four wells, the Wymple Ho. 5, the Richardson Ho. 1, the Tex-La on Pine Island, and, I believe, Richardson Ho. 2. I may have gotten away from it just for a moment, and extending the first two wells along in 1905 or 1906, the last two in 1914; those dates are substantially correct. Then there seems to have been interims under the proof between 1905 and 1906, and 1914, and between 1914 and the trouble which the Governor of Louisiana discovered and which trouble was resulting in a loss of the natural resources of the state of Louisiana, and the loss was so great that an asserted conservation policy was adopted by that state, in so far at any rate as calling into play those w1k> might know and from such knowledge seek to prevent such losses, I say even giving the testimony of these gentlemen its fullest effect, that is the result of it. But now if we engage in a slightly more critical attitude toward that testimony, an attitude which is wholly judicial and wholly impersonal, we must say that the element of human memory, as displayed in the detail of the particulars of the alleged transaction, is so big that neither of them exposes to the court the use of a process there which can be said in law to have been a use such as Stroud afterwards gave to the world. It is unnecessary, I think, to go into particulars with reference to it, but I can’t see a man pounding rock with the crude implements and the differentiated methods that the witnesses bring here to the stand in such a successful way as to anticipate what Stroud discovered.

Attention is called to the Barbed Wire Patent Case, 143 U. S. 275, 12 S. Ct. 443, 36 L. Ed. 154, in which Mr. Justice Brown suggests that in view of the unsatisfactory character of oral testimony touching anticipations, arising from forgetfulness, liability to mistake, proneness to recollect things for the party calling, not to speak of the temptation to actually misstate, courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory, and beyond a reasonable doubt. See, also, the language of Chief Justice Taft in Eibel Process Case, 261 U. S. 45, 43 S. Ct. 322, 67 L. Ed. 523, as well as Deering v. Winona Harvester Works, 155 U. S. 286, 15 S. Ct. 118, 39 L. Ed. 153.

A complete answer, I think, to the situation is and was that even the samples from Louisiana that were brought to the laboratory and which samples are in bottles in court, some of which were ground, according to the testimony, and some of which were' beaten with hammers, show upon examination that the bottles that were said to have been beaten with hammers exhibit particles now that clink against the glass and show the largeness of the size and so forth. So that the best that can be said, if we construct out of the testimony of those men a sufficient basis, which I am not sure can be done, but assuming that we can do it, the best that ean be said is that what they used in there, while some of it was dust, was rocks, pieces of rocks, some of considerable size, and that they killed the wells. The impossibility of doing what was said to be done afterwards with that same fluid, and that same mud, and those same rocks as a drilling fluid which came up and deposited, and went back down through the wells over and over again, that is doing what Stroud’s patent claims his fluid will do, I think is wholly out of the question. It wasn’t used for that purpose. It did not accomplish that purpose. Some of it went in one way and some of it in another way. Some of it was used as rope was used and as sacks were used, and as cement was used, and so forth; some of it was used after thirty or forty days of trouble with the well, and so forth. I do not find, therefore, that there is that clear satisfaction and firm basis in the alleged prior uses of a mud-heavying substance such as may be said in law to have anticipated to the extent of invalidating the patent here under scrutiny.

I cannot say that another criticism that the defendant has levelled at the Stroud patent is not well taken. I say, I cannot say that that criticism is not well taken. One of the witnesses presented by the defendant is of strong mentality, and I think his reasoning with reference to some of these allegations especially in the- specifications and purposes of the patent are good criticisms, but I think they are superfine. They may be termed in all good scholarship as somewhat hypercritical. The man constructed here or the genie constructed here for the accomplishment of the needed accomplishment must be taken as a whole. We may differ as to the dimensions of his toenail or how long he can hold his breath, but that he is a successful genie is beyond controversy. It is sold to the trade. The trade has been using it. It is successful. The trade needed it. And I believe that is the big thing when one enters this field.

It is true, while we are thinking right along that line, this particular part of the patent, or of a patent, we will say, is addressed to the skillful in the art, but also it is for the purpose of offering something new and how to use it, and the more skillful the reader, the more quickly he will discover its uses, and the burning brightness of his brain should not be used to destroy that which was bom and which he now sees, but which in his strength he might find some other use for. The point is, is it workable, is it usable, is it useful, is it new?

I have not gone through hypereritically all of the claims, counsel for the plaintiff, but I think we picked them out pretty well, and if plaintiff is satisfied with them, the court is.

The court therefore directs a decree for the complainant as to claims 7, 8, 9, 10, 12, 13, 15’, and 16-, of patent number 1,595,945.

The decree should be an interlocutory one with a reference to a master for the ascertainment of damages.


author: GODDARD, District Judge.

text:
    In re CROTONA DRESS CO., Inc.
    District Court, S. D. New York.
    March 29, 1934.

      Otterbourg, Steindler & Houston, of New York City (Arnold A. Jaffe, of New York City, of counsel), for trustee.
    David Haar, of New York City, for bankrupt.
   GODDARD, District Judge.

It is apparent from a reading of the record that there is sufficient evidence to support the findings of the referee that neither of the respondents now have, or have had since the bankruptcy, any of the property which the trustee requests that they be directed to turn over to it; also, that respondents are "utterly unable to comply with a turnover order.” Such a finding should be accepted by this Court in the absence of plain mistake. In re Slocum, 22 F.(2d) 282 (C. C. A. 2).

It is true that the unexplained "shortages” created a presumption that the respondents still had the property, but this presumption was overcome by the definite finding of the Referee that they had not.

These respondents may have been guilty of making up a false financial statement or of some other wrongful act, but the sole purpose of and reason for a turnover order is to compel one who has property belonging to the bankrupt estate and wrongfully withholds it to turn it over to the trustee. It would not only he an abuse of process hut useless to order respondents to turn over property when it is known that they have not got it and cannot comply with such an order.

Report of referee confirmed. Settle order on notice.


author: COXE, District Judge.

text:
    THE ALGONQUIN. Petition of CHEROKEE-SEMINOLE S. S. CORPORATION et al.
    District Court, S. D. New York.
    July 28, 1933.
    Burlingham, Veeder, Fearey, Clark & Hupper, of Now York City (Chauneey I. Clark and A. Howard Neely, both of New York City, of counsel), for petitioners.
    Bigham, Englar, Jones & Houston, of New York City (Leonard J. Matteson, of New York City, of counsel), Carter, Ledyard & Milbum, of New York City (Rush Taggart, of New York City, of counsel), Single & Hill, of New York City (Alonzo L. Tyler and C. Welmore Robinson, both of New York City, of counsel), George Z. Medalie, U. S. Dist. Atty., of New York City (Charles E.< Wythe, of New York City, of counsel), Bailey & Muller, of New York City (William H. Woolley, of New York City, of counsel), Park, Lynch & Hagen, of New York City (Anthony V. Lynch, Jr., of New York City, of counsel), Kirlin, Campbell, Hiekox, Keating & McGrann, of New York City (William H. McGrann, of New York City, of counsel), for claimants.
   COXE, District Judge.

This is a petition to limit the liability of the steamship Algo-nquin with respect to damage claims arising out of a collision with the steamship Eort Victoria at the entrance to New York Harbor on December 18, 1929. The collision occurred at 3:50 p. m., in a dense fog, in the vicinity of the Fairway Buoy, outside Ambrose Channel; and four hours later, after the passengers and crew had been safely removed, the Fort Victoria sank, and became a total loss.

Tbe right of the petitioners to limit is admitted. It is conceded, also, that the Algonquin was solely at fault for tbe collision; and counsel for the petitioners stated at the opening of the trial that the claim of the owner of the Fort Victoria had been settled; so that the only claims still left open for consideration axe for loss of cargo and personal effects of passengers and crew of the Fort Victoria; and with respect to these latter, the petitioners assert that the damage resulted, not from the collision, but from the negligence of those in charge of the Fort Victoria, in failing to beach the vessel during the four hours which elapsed after the collision, and prior to the sinking.

The petitioners allege, in paragraphs sixth, seventh, and eighth of the petition, that the damage to the Fort Victoria “by reason of contact with the Algonquin was not in itself severe or vital”; and, further, that “leakage into the Fort Victoria” resulted from the failure promptly to close the water tight bulkheads, or to use .a collision mat; that there were unnecessary delays “in the weighing of her anchor and/or the slipping of her chain * * * or by defective appliances and apparatus”; and that “tbe Fort Victoria, her cargo and effects were prematurely abandoned,” and “those responsible * * * failed to exercise reasonable exertions either to raise tlxe vessel or to save the contents.” At the trial, the petitioners placed little reliance on these specific allegations, but asserted broadly that those in charge of the Fort Victoria were negligent in refusing the offered assistance of the wrecking tug Columbine; and that if such assistance had been promptly accepted, it would have been possible to have beached the Fort Victoria in shoal water while she was still afloat, and, in that way, to have saved, or at least to have minimized the damage to, the cargo and personal effects of passengers and crew.

When testimony was first offered by the petitioners with respect to the asserted refusal to accept the assistance of the Columbine, objections were made by tbe claimants that the proof was not within the allegations of the petition; ap.d at the close of the trial a motion was made by the petitioners to conform the allegations of the petition to the proof. This 'motion was taken under advisement; and in view of the fact that surprise was neither asserted nor claimed in so far as the Columbine was concerned, and the issue has been fully litigated, I can see no good reason why the ease should not be disposed of on tbe merits. The motion of the petitioners to conform the petition to the proof is accordingly granted.

On the merits, the claimants insist: (1) That those in charge of the Fort Victoria were not guilty of negligence subsequent to the collision; (2) that even if there were such negligence, it was not of such a nature as to break the causal connection between the collision and the loss sustained by the claimants, or sufficient to meet the severe burden resting on the petitioners to show that the damage resulted from some cause other than the collision; and (3) that the present claimants arc not responsible for any intervening negligence by those in charge of the Fort Victoria.

The Fort Victoria was a steel vessel built in 1913 ; her length was 411.7, breadth 56.7. depth 34.1; gross tonnage 7,784; net tonnage 4,533. She left New York at 11 a. m. December 18,1929; drawing 29' 11” forward, and 22' 6" aft, bound for Bermuda, with 2:46 passengers, 168 officers and crew, and a general cargo of merchandise. The Algonquin is also a steel vessel, built in 1926, having a gross tonnage of 5,945, net tonnage of 3,546, length 387.5, breadth 55.2, depth 20, and 4,200 indicated horse power. At the time of the collision, she was on a voyage from New York to Miami and Galveston with passengers and cargo.

The Fort Victoria proceeded slowly down the Bay through intermittent fog, and at about 3:45 p. m. stopped to discharge her pilot about one-fourth to one-half of a mile S. E. of the Fairway Buoy, outside Ambrose Channel. The pilot boat New York had arrived and taken a position off the Fort Victoria’s port bow. The fog was extremely dense, and the Fort Victoria was stopped dead in the water, and blowing tbe regulation fog signals. The pilot, Fendt, was about to leave the vessel, when through the fog, and without warning, the Algonquin suddenly appeared, and crashed into the Fort Victoria on her port side about amidships, at almost right angles.

The speed of the Algonquin was variously estimated at from 10 to 12 knots, and her bow ripped into the hull of the Fort Victoria a distance of 8 to 10 feet at the height of the 'promenade deck; the opening at that point bring about 5 feet wide. Below the water line, there was a large circular hole in the shell, through which the water poured into the boiler room, putting the engines immediately out of commission, and causing the vessel to list sharply to starboard. The boiler room filled quiekly, but the water-tight doors between the boiler and engine rooms were promptly closed, and the chief engineer reported to the bridge that the boilers were finished, but that the vessel would probably float, provided the bulkheads held.

Captain Francis, who was on the bridge with, pilot Fendt, thought from the first that the Fort Victoria “would possibly sink”; and, after the starboard anchor had been dropped to prevent the vessel from drifting tty sea, or colliding with other vessels, orders were given to man the lifeboats; and thereupon the passengers and crew were disembarked into lifeboats, except a skeleton crew of 13 to 16 men left on tbe vessel. This was accomplished by 4:48 p. m., but it was not until 5:45' p. m. that the last lifeboat was picked up, and*the passengers and crew safely transferred to the pilot boats New York and Sandy Hook, whieh were standing by to render assistance.

In the meantime, the Algonquin had backed away from the Fort Victoria and anchored, but there did not appear to he any help she could give in transferring the passengers and crew; and she at no time offered to tow the Fort Victoria to shoal water. There was testimony also that the Favorita, an outgoing vessel, 274.5 feet in length, breadth 36, depth 13.8, and 1,676 gross tonnage, came alongside the Fort Victoria at 5:05 p. m., and of- . fered assistance, but was told that the pas■sengers had been taken off, and that assistanee was not required.

After the passengers and most of the crew of the Fort Victoria had left the vessel, the skeleton crew of 13 to 16 officers and men remaining gathered in the forepart of the ship and proceeded to make the vessel ready for towing. In the meantime, the New York had been advised by tbe pilot, Fendt, to stand by to take a line to tow tbe Fort Victoria to sboal water; and while the lifeboats were being picked up by the New York and the Sandy Hook, the' New York was being prepared for towage.

On the Fort Victoria, the skeleton crew worked under extreme difficulty to get the 8-inch lines, 90' fathoms in length, out of No. 2 hold, and to the forecastle head; for there was no steam to operate the windlass, it was dark, the decks were wet and slippery, and the vessel had a considerable and increasing list. Finally, one of the 8-ineh lines was hauled into place, and, with the assistance of a yawl from the Sandy Hook, passed to the New York, which, in the meantime, had come alongside; thereupon an attempt was made to clear the anchor chain, hut it refused to run, and no place in the chain was available for knocking out the shackle pin. Then, after various efforts to release the shackle had failed, it was decided to cut the chain, and P’arker, the second engineer, produced a hack saw, with whieh he sawed through one of the chain links, the entire operation taking about 23 minutes to' perform.

The line to the New York was already out, and when the chain had been severed, the New York commenced immediately to tow the Fort Victoria towards shoal water, about 2% miles to the northwestward) between Ambrose and Gedney Channels. According to the New York’s log, it was 6:40 p. m. when the towing started, and the tide at that time was flood, with a current velocity of about .6 knots. At first, the New York had difficulty in getting into position, but that was quiekly remedied, and the towing proceeded until 7:05 p. m., when the hawser parted. A new line was thereupon passed, and the New York began again to tow at 7:30’ p. m., continuing until 7:45 p. m., when the Merritt-Chapman wrecking tug Relief arrived, and took the hawser from the Fort Victoria. Five minutes later, or at 7:50 p. m., after the Fort Victoria had been towed about a mile from the place of collision, the vessel rolled over on her side, filled, and sank.

Just prior to the sinking, the members of tbe crew of the Fort Victoria remaining on the vessel were taken off by the Columbine; whieh had been standing by at the request of Captain Francis; and as the Fort Victoria went down, the Columbine came head on to her bottom, and, throwing a line to Captain Francis and pilot F'endt, who, in the meantime, had scrambled on to the side of the vessel as she rolled over, hauled both men to gafety.

The petitioners have no complaint to make of the way Captain Francis handled his vessel immediately after the collision. They admit that the water-tight doors were closed promptly, and that there was no disorder or confusion on board the ship. They concede also that the master’s first duty was to save the lives intrusted to his care;' and they have no criticism of the manner in which he discharged that duty. They assert, however, that from 4:48 p.m., when the last lifeboat left the vessel, valuable time was lost in making the Fort Victoria ready for towing, and in utilizing assistance at- hand for the purpose of beaching the vessel.

But obviously the New York was not available for towing until after the last lifeboat had been picked up at 5:45 p. m.; and it is not seriously urged that the Algonquin either offered or could properly have towed the Fort Victoria to shoal water. The same probably is true also of the Favorita, which did not reach the Fort Victoria until 5:05 p. m., and was not a satisfactory towing vessel. By that time, also, there was every reason to expect that the New York would shortly be ready for towing; and when the last lifeboat had been safely accounted for, at 5:45 p. m., the New York immediately came alongside the Fort Victoria, and the Fort Victoria’s line was promptly passed to her. It was only then that the trouble with the anchor chain developed; and surely this unforeseen difficulty could hardly have been anticipated or guarded against.

The Columbine reached the Fort Victoria at 5:55 p. m., having come from Gravesend Bay in response to one of the Fort Victoria’s SOS signals. She was owned in Baltimore, and originally built as a lighthouse tender in 1892; later, she was made over into a wrecking steamer, and used primarily to tow vessels to Baltimore “for scrapping purposes.” Her indicated horse power was 800, length 145.5, breadth 26.4, depth 14, gross tonnage 456, and net tonnage 307. She had on board, as part of her regular equipment, an acetylene burning torch, and two 200-fathom towing lines, one 9-inch diameter, and the other 10-inch. Captain Cullison of the Columbine testified that when he came alongside the Fort Victoria, he called to the bridge and asked what they wanted him to do; that in reply he was asked if he had on board “a burning gear” to burn the Fort Victoria’s chain, to which he answered in the affirmative. He then directed that the burning “rig” be brought on deck and moved aft for transfer to the Fort Victoria; and, when the equipment was “about ready,” “someone from the bridge of the ship called over and wanted to know what steamer it was, and I told him it was the Columbine, and he wanted to know who were the owners, and I told him the Union Shipbuilding Company of Baltimore, and they wanted to know who sent us, and I told them we had answered his distress call, and he told me that he didn’t need our assistance, didn’t care for our assistance.”

Captain Cullison estimated that it took about 5 minute to get the “burning rig” out of the Columbine’s hold and onto the deck, and that it would have taken about 15 minutes more tO‘ have transferred the equipment to the deck of the Fort Victoria, and a further 5 minutes to adjust the burner and bum the chain; so that even if Captain Cullison’s offer had been accepted, the chain could hardly have been burned through before 6:20‘ p. m., or not much sooner than it was actually cut through with the aid of the hack saw. But however that may be, it was the deliberate judgment of those on board the Fort Victoria that, under the conditions then existing, nothing would be gained by attempting to operate the burning torch; and I cannot say that this decision was wrong. Certainly, the judgment of those on the spot "is entitled to greater weight in that respect than the opinion of those who seek to criticize after the event. The Mary T. Tracy (D. C.) 298 F. 528.

It is, however, insisted that the Columbine was superior to the New York in towing ability; but that is not borne out by a comparison of the data relating to the two vessels. The gross tonnage of the New York is 541 against the Columbine’s 456; her length is 155 feet against the Columbine’s 145-.5; her breadth 28.1 against the Columbine’s 26.4; and her depth 19'.9 against the Columbine’s 14. Both vessels are rated at 809 horse power. Moreover, the New York has been utilized frequently as a towing vessel, and, despite her cutaway bow, was shown to have well-recognized towing qualities. Furthermore, those in charge of the New York had a greater familiarity with New York waters, and the spot where the Fort Victoria might properly be beached, than those on board the Columbine. I cannot believe, therefore, that there was any advantage in changing from the New York to- the Columbine at 5:56' p. m., when the Columbine first offered her assistance, especially as at that time the line to the New York was out, and she was ready to go.

It is asserted, though, that the Columbine’s two 200-fathom lines would have been helpful in turning the Fort Victoria around and towing her to shoal water; hut the fact that the Columbine had these two long hawsers on board was not communicated to the Fort Victoria, and even if it had been, I doubt whether any additional length of hawser beyond the 90-fathom line actually used would have expedited the towing; for in the darkness and fog it was clearly inadvisable to have a long tow line out to the Fort Victoria, and, except for the ground swell, the surface and tide conditions were not disadvantageous for towing on a short hawser.

There was nothing to be gained, either, in using both the New York and the Columbine simultaneously to tow the Fort Victoria, as the saving of time would not have been appreciable, and any added speed in towing would have been extremely dangerous. Indeed, the New York had mo-re power than she could safely use, and proceeded only at slow and half speed during the towing operations.

The radio messages exchanged between the Fort Victoria and her owners in New York have been explored by the petitioners in an attempt to show that the assistance of the Columbine was refused to save the salvage expense; but a careful reading of these messages discloses merely that the owners were zealously trying to bring help to the Fort Victoria, and that the Fort Victoria was waiting expectantly for such help. There is nothing, however, to support the contention that Captain Francis delaj'ed the towing of his vessel, or refrained from taking any action deemed by him wise or prudent for the preservation of the property entrusted to his care, because of these communications with the owners; and the suggestion that Captain Franais’ judgment was influenced by an unwillingness to subject the owners to an obligation for salvage services is plainly untenable, as it was not the owners’ money he would have saved, but rather that of the petitioners, whose vessel was solely responsible for the damage, whatever it might ultimately prove to be.

Captain Francis maintained throughout his entire testimony that he at no time refused the assistance of the Columbine, and had nothing to do with the decision regarding the burning equipment. He realized the precarious situation of those still on board the Fort Victoria, and asked Captain Cullison to stand by with his vessel to take off the men from the Fort Victoria in case of emergency; and the wisdom of his judgment in making this disposition was amply justified by what subsequently transpired. For had it not been for the quick and meritorious action of the Columbine in rescuing the men from the Fort Victoria as she went down, it is extremely doubtful whether any of them would have been saved. t

I do not believe, therefore, that it can fairly be said that there was any negligence, or even any error of judgment, on the part of those in charge of the Fort Victoria in declining to accept the Columbine’s offer of her burning equipment, or in failing to make use of her towing assistance, or in the way the Fort Victoria was handled after the collision; but however that may be, there was no* showing by the petitioners of any intervening act of negligence of a nature so plainly faulty as to break the causal connection between the collision and the loss sustained. The Walter A. Luckenbach (C. C. A.) 14 F.(2d) 100; certiorari denied, 273 U. S. 741, 47 S. Ct. 335, 71 L. Ed. 868; Allen & Robinson v. Inter-Island (C. C. A.) 34 F.(2d) 83; The Glendola (C. C. A.) 47 F.(2d) 206; L. R. Connett No. 17 (C. C. A.) 54 F.(2d) 626; The City of Macon (C. C. A.) 121 F. 686. The burden was on the petitioners to make this showing, The Walter A. Luckenbach, supra; The Bartle Daly (C. C. A.) 45 F.(2d) 605; and this they have failed to do.

There may be a decree adjudging that the petitioners are liable for the damages sustained by the cargo, and passenger and crew claimants, as a result of the sinking of the Fort Victoria.