The determination of the question whether a referee in bankruptcy has power to pass upon testimony substantially determines the question whether he should be personally present when it is taken. Formerly examiners in equity suits usually took down the testimony in longhand, but under the modern practice the actual taking down of the testimony is usually performed by a clerk or stenographer. Under these circumstances, as the examiner has no power to rule upon testimony, the only substantial necessity for his presence is to administer the oath to the witness, and in actual practice it frequently occurs in such cases that, after administering the oaths, he does not remain personally present. But a judicial officer, who is to decide upon the effect of testimony, in my opinion, is bound to personally hear the evidence, if required by any interested party. A referee in bankruptcy, therefore, in my opinion, is bound to be personally present when evidence is taken which he is to pass upon, unless, in the case of purely formal evidence, his presence is waived.

I decline to make any direction in reference to closing the reference in this case. That matter is left to the discretion of the referee.

JANNEY v. PAN-COAST VENTILATOR & MFG. CO.
(Circuit Court, E. D. Pennsylvania. June 16, 1904.)
No. 20.

1. INJUNCTION--VIOLATION-CONTEMPT PROCEEDINGS.

The president of a defendant corporation held guilty of contempt of court for violation of an injunction restraining the use by the corporation of a trade-name.

In Equity. On motion to revoke appointment of master, and motion to attach Joseph C. Henvis for contempt for violation of injunction.

See 128 Fed. 121.

A. B. Weimer, for complainant.

A. T. Johnson and Charles F. Warwick, for Jos. C. Henvis.

J. B. MCPHERSON, District Judge. Much as I should have preferred to profit by the report of a master on the motion to attach the respondent, Henvis, for contempt, I shall be obliged to forego that advantage. The complainant moves to revoke the order appointing the master on the ground that he has no further testimony to offer, and for that reason asks the court to dispose of the motion to attach upon the affidavits that have already been presented. Under these circumstances I think the motion to revoke should be granted, and, as this requires me to decide for myself whether a contempt has been committed, I have given the testimony careful consideration, making an especial effort to read it without bias or prejudice. I hope I may have succeeded, for my conclusion is adverse to the respondent. To my mind it is clear that he deliberately evaded and disobeyed the injunction order of February 26, 1904, by issuing the circular headed,

"We challenge the world," etc., if by no other act, and I am therefore. obliged to adjudge him guilty of contempt.

It is accordingly ordered that the motion to revoke the appointment of the master be granted, and, after consideration of the affidavits heretofore submitted, the court does adjudge Joseph C. Henvis, the respondent, guilty of contempt in disobeying the injunction order of February 26, 1904, and as a penalty for this disobedience orders. that he pay a fine of $100 and the costs of this attachment proceeding within five days from this date. In default of such payment the marshal is directed to take him into custody, and deliver him to the jail of Philadelphia county, there to suffer imprisonment for the period of 30 days.

THE CORA F. CRESSY.

(District Court, D. Massachusetts. June 20, 1904.)

No. 1,457.

1. SEAMEN-DISOBEDIENCE-PUNISHMENT-IMPRISONMENT.

That the master of a vessel failed to replace a second mate who had been paid off at an intermediate port, as required by Rev. St. § 4516 [U. S. Comp. St. 1901, p. 3071], was no excuse for the total refusal of members of the crew to work the vessel, and was therefore no defense to the master's right to punish them for their disobedience.

In Admiralty.

John J. O'Connor, for libelants.
Carver & Blodgett, for claimant.

LOWELL, District Judge. This was a libel to recover (1) damages for false imprisonment, and (2) wages.

1. The seamen libelants refused to work, and were put in irons until they were ready to obey orders. The imprisonment was justified, unless the refusal to work was justified. The libelants' counsel seeks to justify the seamen's disobedience by the master's alleged violation of Rev. St. § 4516, as amended by Act 1898, c. 28, § 1, 30 Stat. 755 [U. S. Comp. St. 1901, p. 3071], in that the vessel put to sea without replacing a second mate who had been paid off at Norfolk, an intermediate port. But, even if section 4516 applies to domestic vessels, and extends to the replacing of both officers and seamen, and though it be assumed that the master of the Cressy could reasonably have obtained a second mate at Norfolk (all disputable propositions), yet the master's violation of law does not excuse the crew's total refusal to work the vessel, either at Norfolk or after leaving that port. Hence the libelants have failed to prove any false imprisonment.

2. It follows that the master was justified in docking the crew's wages during their confinement, but, as he failed to comply with the provisions of Rev. St., § 4597 [U. S. Comp. St. 1901, p. 3115], I am disposed to mark my disapproval of this irregularity by disallowing the deduction.

Decree for balance of wages, without costs.

CLARKE V. EUREKA COUNTY BANK.

(Circuit Court, D. Nevada. July 18, 1904.)

No. 728.

1. APPEAL-FINAL JUDGMENT-MOTION FOR NEW TRIAL-PENDENCY.

The judgment of a federal court is not final, so that the jurisdiction of the appellate court may be invoked, while the judgment is still under the control of the trial court through the pendency of a motion for a new trial.

2. SAME-SUPERSEDEAS BONDS-SUFFICIENCY.

Where plaintiff was present when the amount of defendant's supersedeas bond for appeal was fixed by the trial court, and made no objection to the amount fixed, whereupon a writ of error was allowed, the bond accepted, and citation issued, the fact that the amount fixed, was, by inadvertence, some $30 less than the amount actually due on the judgment, including interest, etc., was immaterial.

B. MOTION TO INCREASE BOND-JURISDICTION.

Where a supersedeas bond has been accepted, writ of error allowed, and the citation issued, a motion to increase the bond is within the exclusive jurisdiction of the appellate court.

Motion for Issuance of an Execution.

Alfred Chartz and N. Soderberg, for plaintiff.
Cheney, Massey & Smith, for defendant.

HAWLEY, District Judge (orally). The record in this case shows that the judgment was rendered July 6, 1903, in favor of plaintiff, for the sum of $11,251.75; that thereafter stipulations were filed by the respective parties, and orders made by the court in pursuance thereof, extending the time for plaintiff to file and serve notice of motion for new trial and bill of exceptions, and for a stay of execution. The first of these stipulations was filed January 14, 1903, the second was filed July 31st, and the third August 31st, extending the time up to and including the 21st day of September, 1903. The notice of motion. for new trial was filed August 31, 1903, and thereafter set for hearing on September 21, 1903, then overruled, and on the same day this court allowed the writ of error to the Circuit Court of Appeals upon the defendant giving a bond in the sum of $11,500 to operate as a supersedeas bond. It further appears that in due course of time the case was regularly placed upon the calendar of the Circuit Court of Appeals, and on May 2, 1904, the judgment of this court was affirmed. A petition for rehearing was filed, and on June 3, 1904, denied. Thereafter the plaintiff in error, defendant in the court below, moved the Circuit Court of Appeals for, and obtained, an order staying the mandate herein until the Supreme Court pass upon an application for a writ of certiorari to review the judgment herein rendered upon the filing of an additional bond in the sum of $1,000. On July 1, 1904, the plaintiff moved this court "to vacate and set aside the order herein made and entered in said cause on the 21st day of September, 1903, granting the supersedeas and stay of execution, and ordering that upon the giving

11. What decrees are final. see note to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379.

131 F.-10

of a bond by defendant in the sum of $11,500 said bond should operate as a supersedeas bond, and that execution issue herein upon the judgment made and entered by said court on the 6th day of July, 1903, in favor of plaintiff and against said defendant."

1. It is claimed that the writ of error was not sued out within 60 days from the entry of judgment, in accordance with the provisions of section 1007, Rev. St. [U. S. Comp. St. 1901, p. 714], 60 days having elapsed since the judgment was originally entered. This contention is without merit. The decisions of the Supreme Court are to the effect that a judgment is not final, so that the jurisdiction of the appellate court may be invoked, while it is still under the control of the trial court through the pendency of a motion for new trial. Kingman Co. v. Western M. Co., 170 U. S. 675, 678, 18 Sup. Ct. 786, 42 L. Ed. 1192, and authorities there cited.

2. It is claimed that the bond given on the writ of error is insufficient in amount to operate as a supersedeas, in this: that it was allowed in a sum about $30 less than the amount then actually due upon the judgment, including interest, etc. This, if true, seems to have been an inadvertence. The plaintiff was present when the amount was fixed by the court, and no objection was made to the amount of the bond. The rule is universal that when a writ of error or an appeal is allowed, the original bond accepted and the citation signed, the jurisdiction of the suit is in the appellate court, and the jurisdiction of the lower court over the cause ceases, and a motion to increase the bond on the writ of error could have been addressed to the appellate court, if so desired. Morrin v. Lawler (C. C.) 91 Fed. 693, and authorities there cited; Keyser v. Farr, 105 U. S. 265, 26 L. Ed. 1025. As was said by the court in Draper v. Davis, 102 U. S. 370, 26 L. Ed. 121:

"The power of the justice over the appeal and the security, in the absence of fraud, was exhausted when he took the security and signed the citation. From that time the control of the supersedeas as well as the appeal was transferred to this court; and even here, as we held in Jerome v. McCarter, 21 Wall. 17, 22 L. Ed. 515, in the absence of fraud, the action of the justice or judge in accepting the security, within the statute and within our rules adopted for his guidance, was final, so far as it depended on facts existing at the time the security was accepted."

It necessarily follows that the supersedeas granted by this court by the order allowing the writ of error herein on September 21, 1903, is still in force, has never been, and cannot now be, vacated.

The motion is denied.

In re CARLETON..

(District Court, D. Massachusetts. June 21, 1904.)

No. 8,359.

L BANKRUPTCY-DISCHARGE-EFFECT OF PRIOR DISCHARGE.

A discharge granted to a bankrupt, in partnership proceedings instituted by himself, is one granted in voluntary proceedings, and precludes him from obtaining a second discharge within six years, under Bankr. Act July 1, 1898, c. 541, § 14b. 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411].

2. SAME.

The provision of Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], which forbids a discharge if the bankrupt has in voluntary proceedings been granted a discharge within six years, is not retroactive as applied to cases where the first proceedings were had prior to its enactment, but merely adds a new condition of discharge in cases instituted after the amendment.

In Bankruptcy. On application for discharge.
William H. Preble, for bankrupt.

Charles H. McIntyre, for objecting creditor.

LOWELL, District Judge. Carleton was adjudged bankrupt upon a petition which he filed as member of a firm composed of himself and one Freeman. On October 28, 1902, he received his discharge. On December 10, 1903, he was again adjudged bankrupt upon his individual voluntary petition, and now seeks for a discharge thereunder. The only objection made thereto is that founded upon section 4 of the Ray bill (Act Feb. 5, 1903, c. 487, 32 Stat. 798 [U. S. Comp. St. Supp. 1903, p. 411]), which forbids discharge if the bankrupt has "(5) in voluntary proceedings been granted a discharge in bankruptcy within six years.

Counsel for the bankrupt has suggested that the first adjudication was not had in voluntary proceedings; but, so far as the present bankrupt is concerned, the partnership proceedings must be deemed voluntary. He contends chiefly that to deny the bankrupt a discharge in this case would be to give to the Ray bill a retroactive effect; but this is not true. The original bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), indeed, did not forbid successive petitions in bankruptcy and successive discharges thereunder, but it conferred upon a bankrupt no vested right to file successive petitions and to receive successive discharges which is impaired by the Ray bill. That statute is not retroactive. It creates no new offense and imposes no penalty, but only fixes new conditions of discharge in case of petitions filed after its passage. Its language is plain, and, in accordance therewith, the discharge is here refused.

LAKE DRUMMOND CANAL & WATER CO. v. WEST END TRUST & SAFE DEPOSIT CO.

(Circuit Court, E. D. Pennsylvania. June 27, 1904.)

1. CONTRACTS-PERFORMANCE

No. 56.

INDEMNITY-SURETIES-EVIDENCE-Records. Where a contractor for certain work covenanted to save plaintiff harmless from all claims advanced by any person by reason of the work done or omitted to be done under the contract, and at his own cost and expense to defend all suits which might be brought against plaintiff on such claims, the records of suits so brought in which recoveries were had against plaintiff, which plaintiff paid, were conclusive evidence as against the contractor's surety, provided they disclosed with sufficient certainty that the suits were founded on the negligence or other improper conduct of the contractor.