"For the information of the court, the following papers are annexed hereto. "(1) Copy of the claim of Frank M. Fargo. "(2) Petition of the Provident Life & Trust Company, trustee, asking for a re-examination of the above claim. "(3) Answer of claimant. "(4) Order of referee above referred to. "(5) Claimant's petition for review. "For further information of the court, it is proper that I should say that the order complained of was made in the alternative because the statement made by claimant's counsel at the hearing was that it would be a hardship to bring him some 800 miles from his home, and this I desired, if possible, to avoid. Under the order as made, the claimant's testimony may be taken either at Philadelphia or at his place of residence, and in this regard I believe the case of In re Kyler, 2 Ben. 414, Fed. Cas. No. 7,956, to be a sufficient precedent. "I did not include in the order the expenses of travel to and from Philadelphia, or the claimant's hotel bill whilst here. At the time of hearing, and before the order was reduced to writing, an agreement in this regard was reached between counsel for claimant and trustee; the latter agreeing to pay these expenses if the testimony should be taken here. As this agree ment was made in my presence and with my approval, it seemed unnecessary to incorporate it in the order. He The "With respect to the allowance of counsel fees, I know of no reason for making a distinction between counsel for this particular claimant and counsel for other claimants. The claimant is a party to the proceedings. is seeking to establish his right to a pro rata proportion of the fund. difference between his position and that of the claimants generally is that their proofs, as filed, establish their rights; whereas in his case the connection between the bankrupt and himself, the circumstances surrounding the claim as made, and lack of particularity of statement give occasion for further inquiry. If, under the circumstances, the claimant desires the benefit and advice of counsel, why should it not be at his own expense? "The claim in question was forwarded to the referee by mail from Milwaukee. At the time of the receipt there was no fund in the trustee's hands for the payment of claims. A fund recently realized has made the payment of a dividend possible in the near future, and the claims of creditors are now being scrutinized with greater particularity than at the time of their original presentation, for the purpose of dividing the fund among those who may be lawfully entitled to participate in such distribution. From such examination it appears that Fargo's claim, as filed, is founded on moneys advanced under an 'agreement or understanding' with Watkinson. Whether such agreement was verbal or written does not appear. If written, the agreement, under the rules of practice, should have been annexed to the claim. From the petition of the trustee-and its allegations in this regard are not denied by the claimant-it appears that Fargo is a son-in-law of Watkinson. This circumstance, which was not known to the referee previously, is material. In re Rider, 3 Am. Bankr. R. 192, 96 Fed. 811. By the express terms of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), the referee may, for 'cause,' on his own motion, continue the consideration of claims, or he may, on motion of the trustee, reconsider allowed claims. Neither the terms of the act, nor the general orders, require the petitioner to aver facts which, if proved, would defeat the claim. It is only necessary, in my judgment, to aver facts which, if true, are a sufficient cause for the re-examination of the claim. The claimant pleads the delay of the trustee as a bar. Until the present time there has been no possibility of the payment of a dividend, and there has been no necessity for the trustee to take such action, especially as Watkinson until quite recently has been in its employ. Moreover the act expressly provides for the re-examination of claims at any time before the estate is closed.'" The foregoing report of the learned referee is adopted as the opinion of the court. The order recommended is so far modified, however, as to provide that if the examination of the claimant is held in Philadel phia, and if his claim shall be finally allowed, he shall be repaid his reasonable traveling and hotel expenses. In other respects, the order is approved, except that another day for the claimant's examination must now be fixed by the referee. THE VIRGINIA JACKSON. THE MICHAEL J. COFFEY. (District Court, S. D. New York. May 6, 1904.) 1. COLLISION-TOW AND CROSSING TUG-VIOLATION OF RULES. A tug on the way from a pier in North river to New Jersey in the evening, with four coal barges in tow on one side, and two on the other, held in fault for a collision between another tug on a crossing course and the starboard barge, on the ground that, having the other tug on her right hand, it was her duty to keep out of the way, whereas she allowed herself to drift with the tide across the other's course. The failure of the other tug to see the lights of the tow, or of the barge to carry proper lights, were neither of them faults contributing to the collision, since it was the duty of such tug to keep her course and speed, which she did until in extremis. In Admiralty. Suit for collision. De Forest Bros. and George Holmes, for libellant. Carpenter, Park & Symmers, for the Virginia Jackson. ADAMS, District Judge. This action was brought by the Lehigh & Wilkes-Barre Coal Company to recover the damages it sustained on the 19th of December, 1902, about 7 o'clock P. M., by reason of a collision between its coal barge, L. & W. B. No. 39, in tow of the tug Virginia Jackson, proceeding from pier 18 North River to Bayonne, New Jersey, and the tug Michael J. Coffey, proceeding, light, from pier 11 Hoboken, New Jersey, to pier 13 North River, New York side. The Jackson had 6 barges in tow, 4 on the starboard side and 2 on the port side. The No. 39 was the outside boat on the starboard side. The weather was clear and the tide ebb. When the Jackson, with her tow, reached a point about opposite the foot of Cortlandt Street, New York, several hundred feet out in the river, the Coffey was seen approaching from New Jersey, on the Jackson's starboard hand. Shortly afterwards the collision took place, the Coffey striking the barge a severe blow on the starboard side, about amidships. Numerous allegations of fault are made by the libellant against both tugs, which it is unnecessary to particularize. The Jackson claims that the red light only of the Coffey was seen. and that she gave no heed to two signals of one whistle each, which the Jackson blew to her, and that instead of keeping her course and passing ahead of the Jackson, the Coffey starboarded her wheel and, keeping on at full speed, struck the barge as stated. The Coffey alleges that as she was heading for pier 13, New York, she saw the Jackson and tow, but no lights, except the towing lights on the tug, as the tow was without them and the Jackson's side light not observable, owing to the character of her tow. The situation was such that it was the duty of the Coffey to keep her course and speed and of the Jackson to avoid her. The testimony shows that the barge had a light aft, on her cabin, and that the side lights of the Jackson were duly displayed. The light of the barge and the tug's green light should have been seen by the Coffey; the latter notwithstanding some cabin projections above the decks of the barges. These projections were too far aft and not high enough to obscure the Jackson's green light. While the failure to see the lights indicated an absence of lookout or some want of care on the Coffey's part, it did not, I conclude, contribute to the collision, because it was the Coffey's duty to keep her course and pass ahead. Those on the Jackson say that if the Coffey had kept her course, she would have passed clear. It is evident that the Jackson was not fulfilling her duty to avoid the Coffey and this failure was the proximate cause of the collision. She was admittedly drifting down the river with the tide and across the Coffey's course. The latter changed her course to port just before the collision. It is barely possible that if she had kept on, she might have cleared by a small margin but it is not probable and the change in extremis was not a fault. The injured boat was not properly lighted, under Rule 11 of the Inland Pilot Rules, in failing to have a light forward, but it appears that such a light would not have had any effect upon the collision and, under the circumstances, the boat was not in fault. Decree for the libellant against the Jackson with an order of reference. Libei dismissed as to the Coffey. BUSH CO., Limited, v. CENTRAL R. CO. OF NEW JERSEY. (District Court, S. D. New York. April 26, 1904.) 1. SINKING OF CARFLOAT AT FLOAT BRIDGE-UNSEAWORTHY CONDITION. Libelant left a carfloat, with nine loaded cars thereon, at respondent railroad company's float bridge at Communipaw, N. J. After respondent had removed the three cars on the starboard track, the float listed to port. and sank with the remaining cars. There was a depth of water of about two feet in the float, which was an unusual quantity: and, when the weight was removed from one side, the water flowed to the port side, and added to the weight there. Held, that it was not respondent's duty to inspect the float, and, as it was not notified of its condition, and removed the cars in the usual manner, it was not in fault, but the sinking must be attributed to the unseaworthy condition of the float. In Admiralty. Cross-actions to recover damages for sinking of carfloat at the railroad company's float bridge. Albert A. Wray, for Bush Co. De Forest Bros. (George Holmes, advocate), for Railroad Co. ADAMS, District Judge. The first of these actions was brought by the Bush Company, Limited, to recover from the Central Railroad Company of New Jersey the damages, amounting to about $7,600, caused, it is alleged, by the improper handling on the part of the railroad company of the Bush Company's carfloat Independent Stores No. 3, which was towed to the railroad company's float bridge at Communipaw, New Jersey, on the 20th day of July, 1903. There were nine cars containing merchandise on the float of which the libellant had possession as bailee for hire. The cars were loaded on the float on three parallel sets of tracks, three on each track. The float was towed to the bridge by the Bush company's tug Independent, which left after the float was fastened to the bridge. Subsequently three of the cars were removed from the north side of the float and shortly afterwards the float took a list to port and filled and sank, decks to, causing damages to the float and to the remaining six cars and contents. The Bush Company alleges that the float was seaworthy and the accident caused by negligent handling on the part of the railroad company, and that as to the cargo, the railroad company was liable as a common carrier, in the absence of affirmative proof that the damages arose from some cause for which it was not responsible. The second action was brought by the railroad company to recover the damages caused by the blocking of its float bridge. The contention is, that the float was unloaded in the usual manner and that the accident was due to her unseaworthy condition in having so much water in her, that when the cars on one side were removed. the weight of water flowed to the other side, causing the float to go down on that side, submerging the outer corner and permitting additional water to enter through a slatted hatchway, with the effect of throwing more weight to port and causing the damages sustained by both parties. The testimony shows that the float had considerable water in her when she arrived at the railroad company's place. The Independent spent about two hours in pumping on this water and it is contended by the Bush Company, removed the substantial part of it, leaving the float in a seaworthy condition, and that the cause of the accident was the negligent manner of fastening the float to the bridge in the unusually low tide which prevailed, rendering it necessary to force the floating end of the bridge down in the water low enough to allow the float to be toggled on, so that when the weight of a locomotive and a car, which were placed upon the bridge for additional weight, was removed, the bridge arose about 2 feet and depressed the outer end correspondingly. The testimony does not show that there was any unusual condition of the tide on the occasion, and the facts sustain the railroad company's contention generally. There was an unusual depression of the bridge where the float was fastened to it, owing to her low freeboard. This was partly caused by the water in her, but she was ordinarily lower than most floats and the depression did not excite especial attention. The condition could have been determined by a careful examination, but it was not apparent that a disastrous result would follow an attempt to discharge her and the railroad company can not be held in fault in view of the fact that the proximate cause of the loss was the unseaworthiness of the float. It seems to be the practice of the company to carefully inspect its own floats before they are toggled to the bridge and not to make any fast having more than about 6 inches of water in them, while this float had about 2 feet, but it appears that it is neither usual nor incumbent upon the company to examine outside floats, which are expected to notify the bridge men if there is anything wrong with them. No such notice was given in this case by the Bush Company's representatives on the scene, and under the circumstances, it can scarcely be said that the railroad company was legally in fault. The libel of the Bush Company should be dismissed and that of the railroad company sustained, with an order of reference. Decrees accordingly. FRANK et al. v. UNION CENT. LIFE INS. CO. (Circuit Court, W. D. Tennessee, W. D. April 22, 1904.) 1. PARTIES-USE PLAINTIFF-BRINGING IN BY AMENDMENT. Leave will not be granted to amend the writ, before the appearance of the defendant or the service of the writ and the filing of pleadings in the cause, by inserting the name of a third person as plaintiff suing for the use of the persons originally named as plaintiffs, where such third person is not before the court nor within the jurisdiction, and cannot be served with notice of the application, even though it is proposed to reserve to him the right to object to the order, such an order being, in form at least, an adjudication of the right to so use his name. 2. AMENDMENTS-ABSENT PARTIES-PROTECTION BY THE COURT. It is the duty of the court to exercise its discretion over amendments for the full protection of those who are absent from the record and beyond the jurisdiction of the court. On Motion to Amend Writ. L. & E. Lehman and Elias Gates, for the motion. HAMMOND, J. The previous application to amend the writ, issued some 10 days ago, by inserting the name of Mary Miller as plaintiff, suing for the use of herself and the said Godfrey Frank and others, was refused. The motion now is to allow the amendment, "expressly reserving to the said Mary Miller the right to make any and every objection or issue to this order which she might have made if the writ had been originally issued in the form in which the plaintiffs have now made it by amendment." I think the amendment in its new form also should be disallowed. Our statute of amendments (Rev. St. § 954 [I U. S. Comp. St. 1901, p. 696]) is very broad in its terms, and very liberally construed, by no court more than this. But, while new parties may be thus made to a suit, and should be allowed to be made very liberally, it is the duty of the court to scrupulously guard the rights of all parties who are absent from the record, and to exercise its discretion over amendments for their full protection. When this application was made, the court inquired of counsel why the amendment was needed, and the purpose of it. It was learned by his statement that Mary Miller had made an assignment of a policy of life insurance issued by the defendant company on her own life to the plaintiffs, Godfrey Frank and others, who brought this suit in its present form. It is desired by the assignees to sue in her name as assignor for the use of these plaintiffs. The court inquired if there were any question of the |