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ship company, whether by letter of credit or by a direct loan, are immaterial. The form adopted was the means by which the steamship company obtained money in Brazil to pay the Brazilian debts of the vessel.

The answer to the main question, viz. whether the transaction, so far as the petitioners and the steamship company are concerned, was a maritime contract, is so clearly stated in the opinion of the district judge in Freights of The Kate, 63 Fed. 707, that further discussion is unnecessary. The district judge said:

"A letter of credit, like a loan of money, is in itself indifferent in character. It may be maritime, or nonmaritime, according to the objects of the loan, the intent of the parties, and the circumstances attending it. Maritime contracts are contracts that pertain to maritime commerce and navigation. A letter of credit issued for the purpose of directly aiding the prosecution of current voyages, and upon the faith of the freights to be earned, as a part of the contract, is as purely maritime as a bottomry bond; and no commercial transactions are more characteristically maritime than these. Every loan, whether of credit or of money, to assist a vessel on her voyage, and on the pledge of her freights, is presumably a maritime loan. Mr. Justice Thompson, in the case of The Mary, 1 Paine, 671-673, Fed. Cas. No. 9,187. says: 'All civilians and jurists agree that maritime hypothecations fall under the denomination of maritime contracts.'"

After sustaining the maritime character of the contract with Brown Bros. & Co. by which the freights were expressly hypothecated to secure the repayment of the moneys advanced upon their letters of credit, and the maritime nature of the lien resulting from such hypothecation, the district judge further said:

"The company's contract with Mr. Huntington and Pratt & Co. to obtain their personal guaranties on the faith of a pledge of the freights is of the same maritime character. The letters of credit of Heidelbach, Ickelheimer & Co., considered by themselves alone, and independently of the guaranty by. Messrs. Huntington and Pratt, and the pledge of the freights therefor, would have nothing about them necessarily maritime, since those letters were not accompanied by any kind of hypothecation; nor is there any evidence before me that Heidelbach, Ickelheimer & Co., in issuing their letters, had any reference to the maritime objects of the loan, or any interest in the appropriation of the moneys to the prosecution of these voyages, or that they issued their letters for that especial purpose, or upon the faith of any credit of ship or freight; and, in the absence of such evidence, their dealings should, perhaps, be treated as ordinary nonmaritime commercial dealings. But that fact does not in the least affect the nature of the additional arrangement between the steamship company and their guarantors as respects the latter's means of indemnity; and that additional agreement, and that alone, is what is sought to be enforced in these libels and petitions. That agreement contained two essential elements, in addition to the terms of the contract with Heidelbach, Ickelheimer & Co.: First, that the proceeds of the drafts were to be used to supply necessaries to the company's vessels in foreign ports, to enable them to complete their voyages and earn freight; and, secondly, that the guarantors should enable these means to be procured by their guaranty, to be given upon the credit of the freights of the line. This contract, like that with Brown Brothers & Co., was a purely maritime agreement, and within the jurisdiction of this court, whether the contract between the steamship company and Heidelbach, Ickelheimer & Co. was so or not."

The question of the extent of the security upon which the guaranties were given is next to be considered. It is to be premised that it is not doubted that the owners can create a maritime lien

upon their vessels for necessary supplies furnished to them in a foreign port upon the credit of the vessels, and that the oral contract or agreement between the owners and lienors, whereby such maritime lien was created, may be made in the home port. It is also well understood that the same prima facie presumption of necessity for the credit of the ship which is applicable in the case of supplies furnished in a foreign port upon the sole order of the master does not apply in the case of supplies furnished in such port upon the express direction of the known owner, and therefore, in the absence of presumptions, the question is one in which the petitioners take the affirmative. At the threshold of the iuquiry, three facts are manifest: Firstly, an absolute necessity, recognized by each, and consequent upon the known insolvency of the steamship company, of a maritime lien of some sort; secondly, that a maritime lien was given, which the district court has found to be, at least, upon the freights,-a conclusion which has now become res adjudicata, and in which our examination of the case leads to a full concurrence; thirdly, and one of great importance, that whatever security was given was expressly given. The contract between the parties was an express contract, entered into between the owner of the vessels and Mr. Huntington. The antecedent circumstances are valuable for the purpose of throwing light upon the probabilities of the contract, and in the ascertainment of what one party would have naturally proffered and the other party would naturally have insisted upon; but whereas, in many cases, courts, in consequence of the silence of the parties when the advances were made, or their subsequent forgetfulness of what occurred, are compelled to look at the inferences to be drawn from their conduct and acts, in view of the known insolvency of the owner, little resort can be had in this case to that class of evidence. There is a class of cases, in regard to maritime liens for supplies furnished to a vessel in a foreign port at the request of the owners or of their agent (of which The James Guy, 1 Ben. 112, Fed. Cas. No. 7,195, and 9 Wall. 758, and The Patapsco, 13 Wall. 329, are examples), in which there was not apparently an express contract between the owners and the material men for the credit of the vessel, but in which the lienors' knowledge of the insolvency of the owner was regarded as a very significant fact, from which the inference could naturally be drawn that credit must have been given in part to the vessel. In this case a court is able to ascertain what the owner offered, and what the lienors apparently accepted, as security, at the time when the contract was entered into. The terms of the express contract, when they can be accurately ascertained, must preclude the idea of a contract to be ascertained by inference for another and different security from the one contained in the express contract. It is true that Huntington's knowledge of the utter insolvency of the steamship company is important to show that he naturally would have wanted to get all the security which was available, but, if the evidence shows that he did content himself with the security of the freights, his lien must rest where he placed it.

The entire negotiations with the petitioners in regard to the three letters of credit, so far as the steamship company was concerned, were conducted by Mr. Babbidge, its secretary and treas urer. The conference in regard to the first guaranty was had with Mr. Pratt and Mr. Gates, who was Mr. Huntington's general assistant, and who, having a power of attorney from Huntington, signed, in his absence, the first guaranty. Mr. Huntington personally had conversations with Mr. Babbidge, which resulted in the guaranty upon the second and third letters of credit. Mr. Gates' information in regard to the result of these interviews was derived from the subsequent statements of Huntington and Babbidge. Mr. Pratt was not called as a witness by either party, so that the evidence in regard to the security must be derived from the three persons named. Inasmuch as the money paid by the guarantors upon the first letter of credit has been repaid from the moneys from the freights which were received as the result of a compromise agreement between all the parties, after the decree in the freight-money cases had been entered, it is not indispensable to know what the security was which Mr. Gates accepted, but knowledge of the character of the contract in which he participated is valuable as showing the probable character of the steamship company's proposition for security upon the next request for a guaranty; and, furthermore, the three contracts are closely connected in the mind of Mr. Babbidge, who regards the second and third as reproductions of the first. The first guaranty was ob tained from Mr. Gates to meet the demands of the bankers for a guarantor, and it was then understood that Pratt and Huntington should, as between themselves, equally bear the burden upon that guaranty and any future similar obligations. It is apparent from the testimony of Babbidge that a great deal of persuasion was required to bring them to furnish the first guaranty, and that he informed them that, as Brown Bros. & Co. had a lien upon the freights for their letters of credit, he expected they would have a similar lien also. Gates corroborates this by the declaration that the earnings of the ship, on the voyage to be completed by means of the fund to be raised by the letter of credit, were to be security for the payment of any money which might be called for under that guaranty. The pledge of the freights was the only security offered, asked for, or given, when the first guaranty was signed. The testimony of Babbidge in regard to the conversations between himself and Huntington when the second and third,guaranties were signed is of like import. It is not as positive in regard to a pledge of the freights, but it is apparent that, as the transactions lie in his memory, the negotiations proceeded in the same progressive steps as before. The recollection of Mr. Huntington, as disclosed in his testimony, is less clear and precise than that of Mr. Babbidge. His testimony is, indeed, in general terms, that he was to have a lien on the American ships and the freight list, but it is apparent that there is not in his mind a vivid remembrance of the negotiations. He remembers his conclusion or

supposition in regard to his security,-a conclusion or expectation which was in some measure founded upon his belief in the rights of material men who aided ships in foreign ports. That the first guaranty was not based upon or accompanied by a lien upon the vessels is perfectly manifest from the testimony of two of the parties to the transaction, each of whom is and was friendly to Mr. Huntington; and the probabilities are exceedingly strong that the second and third guaranties were not accompanied by a lien of a different character.

The appellants insist that a decree should have been rendered in favor of the petitioners upon the ground that the money which was obtained upon the strength of their guaranty went to pay and discharge maritime liens upon the vessels in a foreign port; that, by operation of law, these liens were assigned to them; and that they are subrogated to the rights of those lienors whose claims were paid by the money which they indirectly furnished. There is no adequate ground for this conclusion, because in this case there can be no implied assignments by operation of law, no succession to the position of the Brazilian lienors, and no subrogation to their rights, because the contract of lien under which the guaranties were given was expressly limited to the freights. A court of admiralty is compelled, therre, to look at the contract; and, if it does, the right of subrogation disappears, for nothing in the negotiations supports the idea of subrogated liens. Inasmuch as the contract for lien, between the owner and the guarantor, was an express one, the lien which it created upon one thing cannot be supplemented by a lien, arising by operation of law, upon a dif ferent thing.

We concur in the conclusion of the district judge that, "for this guaranty and loan of credit, they [the guarantors] were entitled to just such liens as the agreement at the time of the negotiations gave them, and no more. For a loan of credit as guarantor only, upon a dealing exclusively with the owner, I find no principle or authority for recognizing any other maritime or equitable lien, either directly or by subrogation, beyond what their agreement gives; and that, in this case, was for a lien on the freights alone." The decrees of the district court dismissing the petitions of Huntington and Pratt & Co., as respects the proceeds of the three vessels which have been named, are affirmed, with costs of this court.

MOLONEY, Attorney General, v. AMERICAN TOBACCO CO. et al.

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REMOVAL OF CAUSES-CIVIL ACTION-ANTITRUST LAW.

An information in equity to restrain violation of a state statute forbidding trust combinations is not a civil action, within the meaning of the removal act.

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Information in equity by M. T. Moloney, attorney general of the state of Illinois, against the American Tobacco Company and others, for violation of the antitrust law of Illinois.

Atty. Gen. Moloney, in pro. per.
Charles H. Aldrich, for defendants.

SHOWALTER, Circuit Judge. This proceeding is, in form, an information in equity by the attorney general of Illinois. It was commenced in the circuit court of Cook county, and thence removed to this court on petition of defendants, wherein they insist that a federal question is involved. The proceeding is grounded on section 4 of the act of 1893 of the Illinois legislature entitled:

"An act to define trusts and conspiracies against trade, declaring contracts in violation of the provisions of this act void, and making certain acts in violation thereof misdemeanors, and prescribing the punishment therefor and matters connected therewith."

Said section 4 is in words following:

"Every foreign corporation violating any of the provisions of this act is hereby denied the right and prohibited from doing any business within this state, and it shall be the duty of the attorney general to enforce this provision by injunction or other proper proceedings, in any county in which such foreign corporation does business, in the name of the state on his relation."

Section 1 defines what a trust is. Section 2 provides that any domestic corporation violating any of the provisions of the act shall forfeit its charter and cease to exist. And section 3 directs the attorney general to institute suit or quo warranto proceedings against any domestic corporation so violating the act. Section 5 declares

any violation of any of the provisions of section 1 to be a conspiracy and a misdemeanor, and fixes a fine of not more than $5,000 nor less than $2,000 against "any person who may be or may become engaged in any such conspiracy or take part therein or aid or advise in its commission, or who shall, as principal, manager, director, agent, servant, or employé, or in any other capacity knowingly carry out any of the stipulations, purposes, prices, rates, orders thereun der or in pursuance thereof." And section 6 concerns the form of the "indictment or information for any offense named in this act." But no consequence, as against a domestic corporation, seems to follow the offense, other than the forfeiture of its charter, or, as against a foreign corporation, other than an inhibition from business in this state.

The American Tobacco Company, the principal defendant, is a corporation organized under the laws of New Jersey. It is said, in v.72F.no.7-51

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