to his costs, if he recovers at all. 5 Ency. Pl. & Pr. 172, and authorities there cited; 13 Cent. Dig. 112, and authorities there cited. In Hunter v. Marlboro, 2 W. & M. 168, Fed. Cas. No. 6,908, Justice Woodbury, in speaking of the rule in equity courts, said:

"The inclination should, in my opinion, be to conform to the standard established at law, unless in extreme or strong cases."

Primarily the rule is that the prevailing party in cases in equity, as at law, is entitled to recover costs. But the unsuccessful party may show circumstances which will defeat this right. In the present cases the contention of the defendant is that the plaintiff knew, or could readily have ascertained by an examination of the records of Storey county, that the claim, as admitted by stipulations at the trial, was the property of Frank Baker at the time of the commencement of the action, that the suit was brought without any foundation, and that the plaintiff should be compelled to pay all costs occasioned by its own negligence or inadvertence. But the answer to this contention is that an examination of the records would not have necessarily disclosed the title to the claim. The title to a mining claim depends not only upon the record, but also upon the performance of the annual labor, and making improvements of the value required by law. It may be that, if the minds of the parties had met before the suit was brought, the matter in dispute could have been amicably adjusted; but the issues raised by the pleadings made it necessary for plaintiff to establish its title to the ground claimed (although it was admitted at the trial that it was only entitled to a portion of the ground claimed in its complaint), and this entitles it to the costs. Such is the weight of authority. Rogers v. McGregor, 4 Cow. 531; Hubbell v. Rochester, 8 Cow. 115; Powers v. Leach, 22 Vt. 226; Kelly v. Railroad Co., 81 N. Y. 233; Morris v. Telegraph Co., 38 N. J. Eq. 301; Brown v. Ashley, 13 Nev. 251; Kittredge v. Race, 92 U. S. 116, 121, 23 L. Ed. 488.

My conclusion is that the plaintiff in each case is entitled to recover costs.

THE ALLISON WHITE.

(District Court, D. Rhode Island. August 15, 1904.)
No. 1,110.

1. SHIPPING-INJURY OF STEVEDORE-FALLING OF STANCHION.

Evidence considered, and held insufficient to show that the falling of a stanchion in the hold of a coal barge, by which libelant was injured, while engaged in discharging cargo, was caused by its unsoundness or insecure fastenings, so as to render the barge liable for the injury; it appearing that it had been struck by the steam shovel used by the consignees in discharging, and that other stanchions had been loosened in such manner, which was not an infrequent occurrence.

In Admiralty. Suit for personal injury.

Hugh J. Carroll, for libelant.

Carpenter, Park & Symmers and Frank Healy, for claimant.

BROWN, District Judge. The libelant was seriously and permanently injured by the fall of a stanchion, while he was at work as a

coal shoveler or trimmer in the hold of the barge. He was in the employment of the Newell Coal & Lumber Company, consignee, which had full control of the discharge of the cargo of coal. The libel alleges that the fall of the stanchion was due "to its unsound, weak, and unsafe condition, and to its weak, negligent, and unsafe fastening." The claimant contends that the stanchion was of proper character and construction, but was knocked out by the steam shovel in use by the consignee. After the accident an inspection was made by the master of the barge, who says that he found that a cleat of oak, used to fasten the top of the stanchion, was split, one end being fast in the beam, the other hanging down; that the split was in the center of the cleat. Thomas B. Markham also made an inspection, finding broken two spikes which had been driven into the stanchion. He admitted that at a previous trial he testified, "I felt of it-felt where it was broken off-and along this beam it was ripped off and slivered off the same as you would take an axe; the same as something heavy had driven that stanchion away from the beam where it was fastened." Markham was not questioned as to the cleat. According to the testimony of the guyman and of other workmen that were in the hold, the steam shovel did not strike the stanchion at the precise time of its fall. There is evidence, however, that the stanchion had been struck previous to its fall, though no one heard the cracking of wood. Peterson, the guyman, testified that before the accident he noticed that the stanchion was loose at the top, and that he said to the master of the barge, “That post is loose, and we get the coal out of the way there it might fall down." This the master expressly denies. At a previous trial in the state court, wherein the Newell Coal & Lumber Company was defendant, and the declaration alleged that the steam shovel struck the post and knocked it against the plaintiff, Peterson was a witness, and was asked as to the stanchion: "Q. What made it fall? A. Well, I don't know; couldn't tell you. * * They must have been loose. I can't tell. I didn't examine it." He then said nothing about seeing that the stanchion was loose, nor about calling it to the attention of the master. Carlson, another witness for the libelant, testifies that he saw that the post was loose about an hour before the accident. His testimony at the former trial is not consistent with this testimony. The stanchion was a sound timber. No fault was found with the original construction or method of fastening. Counsel for libelant argues, from the fact that the stanchion had been spiked, that it had been previously broken and temporarily repaired, and that the motion. of the vessel, with or without the pressure of the coal, had broken the spikes, and that the stanchion was loose, "so that when the support afforded by the cargo was withdrawn, some slight vibration, occurring in the ordinary sequence of events, changed its center of gravity, and caused it to fall." The libelant relies chiefly upon the William Branfoot, 52 Fed. 390, 3 C. C. A. 155. In that case, however, there was clear evidence of an old break; and it was held that a proper examination would have disclosed the dangerous condition of the stanchion, and that the condition was probably known to those having the vessel in charge. In this case there is no sufficient evidence that the stanchion was not in sound condition when the barge was turned over to

*

the consignee to be discharged. The existence of broken spikes after the accident is not inconsistent with a sound condition of the stanchion at the time the vessel reported for discharge. The contention that the post was seen by Peterson and Carlson to be loose before the accident, is not sustained by a satisfactory preponderance of evidence; but, even if it were, this would not be sufficient to exclude a blow of the steam shovel as a probable cause of the loosening of the stanchion.

Upon the evidence, I find myself in doubt as to the cause of the loosening of the stanchion. It is impossible in this case to apply the doctrine res ipsa loquitur, and to say that the fall of the stanchion casts upon the claimant the burden of explanation to relieve the barge from fault. The circumstances raise no presumption that the stanchion was insecurely fastened before the steam shovel was put into the hold, or that there had been a failure of proper inspection after previous discharges of cargoes. It is, to say the least, quite as probable that the stanchion was broken from its fastenings by the steam shovel operated by the Newell Coal & Lumber Company, as that it had been broken previously. The libelant's brief says, "It can be said to be wholly impossible for a shovel of this kind, thus handled, * * * to strike against a stanchion with sufficient force to injure it." Nevertheless it appears that two other stanchions were loosened in this way, and that it is not infrequent for an automatic steam shovel to knock out stanchions. When filled with coal, the shovel would weigh between 4,000 and 5,000 pounds. A swinging blow from this would apparently be a sufficient reason to account for the condition of the beam as described by Markham, and for the breaking of the cleat. I am of the opinion that the libelant has failed to establish, by a preponderance of evidence, negligence as charged in the libel, or negligence of any other character for which the barge is responsible. The libel will be dismissed.

In re MERROW.

(District Court, D. Massachusetts. July 22, 1904.)

No. 6,291

1. BANKRUPTCY-ATTACHMENTS-PRESERVATION OF LIEN.

In a valid attachment of land standing in the bankrupt's name, but claimed by his wife, the trustee will be subrogated to the attaching creditor with the consent of the latter.

In Bankruptcy.

Harrison Dunham and James S. Bourke, for trustee.

Howard F. Butler and J. S. Sullivan, for M. Anna Merrow.

LOWELL, District Judge. The referee has found that the bankrupt's wife on January 23d, before her marriage, conveyed real estate to the bankrupt with intent to protect it from attachment. At that time the bankrupt agreed in writing to hold the estate for the grantor, stating expressly that he had no claim thereto. This agreement was not recorded. On January 26th occurred the marriage. At some time.

131 F.-63

in February or March the estate was attached in suits against the bankrupt. On May 13th he reconveyed it through a third party to his wife. On June 13th he was adjudged bankrupt on his own petition. His trustee in bankruptcy has filed a petition praying that the rights under the attachment may be preserved for the benefit of the estate, and that he may be subrogated to the attaching creditors. These attaching creditors in open court assented to the granting of the petition.

It seems that this land would not have passed to an assignee in insolvency under the state law. Low v. Welch, 139 Mass. 33, 29 N. E. 216; Smythe v. Sprague, 149 Mass. 310, 21 N. E. 383, 3 L. R. A. 822. And it may not have passed to the trustee in bankruptcy. See In re Hammond (D. C.) 98 Fed. 845, 860; Chesapeake Shoe Co. v. Seldner, 122 Fed. 593, 58 C. C. A. 261. The question does not arise here, where the title is not in controversy. Here there were existing attachments, apparently valid. The bankrupt act did not dissolve these, except for the benefit of the estate. If they were valid as against Mrs. Merrow before bankruptcy, as against her they were equally valid afterwards. Powers Dry Goods Co. v. Nelson (N. D.) 88 Ñ. W. 703, 58 L. R. A. 770; Lockwood v. Exchange Bank, 190 U. S. 294, 23 Sup. Ct. 751, 47 L. Ed. 1061. The only controversy here possible concerning the rights arising thereunder is between the attaching creditor and the trustee. As both these parties are agreed that the latter shall be subrogated to the rights of the former, the judgment of the referee is affirmed. See In re N. Y. Printing Co., 110 Fed. 514, 49 C. C. A. 133.

TRAITEL BROS. v. UNITED STATES.

(Circuit Court, S. D. New York. June 1, 1904.)
No. 3,264.

1. CUSTOMS DUTIES-CLASSIFICATION-WELSH QUARRY TILES-BRICK-SIMILI

TUDE.

So-called "Welsh quarries" are not dutiable as "tiles" under paragraph 88, Tariff Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 155 [U. S. Comp. St. 1901, p. 1632], but under paragraph 87 of said act, 30 Stat. 155 [U. S. Comp. St. 1901, p. 1632], as "brick, other than fire brick," which they closely resemble in material, quality, texture, and the use to which they are put, within the meaning of the so-called "similitude clause" in section 7 of said act, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693). Appeal by the Importers from a Decision of the Board of United States General Appraisers.

On application for a review of a decision of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Traitel Bros. Note G. A. 4,645, T. D. 21,957.

J. Stuart Tompkins, for importers.
Henry A. Wise, Asst. U. S. Atty.

TOWNSEND, Circuit Judge. The merchandise in question comprises Welsh quarries, so called, which were assessed for duty by the collector at the rate of four cents per square foot, under the pro

visions of paragraph 88 of Tariff Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 155 [U. S. Comp. St. 1901, p. 1632], as "tiles, plain, unglazed, one color, exceeding two square inches in size." The importers protested, claiming said merchandise to be properly dutiable at the rate of 25 per cent. ad valorem, under the provisions of paragraph 87 of said act, as "brick other than fire brick, not glazed, enameled, painted, vitrified, ornamented or decorated in any manner." The Board of Appraisers found that the merchandise is a species of tile known as "quarry tile," and accordingly overruled the protest. This decision appears to be based upon evidence taken in another case, and which is not a part of the record herein. It appears from the evidence herein that the merchandise passed upon in said case was of a different character from that which was before the board on the present protest. The evidence herein does not justify the finding of the board. It appears from the great weight of evidence that quarries are unlike tiles, and in material, quality, texture, and the use to which they may be applied closely resemble brick. They should therefore have been classified by similitude, under the provisions of paragraph 87, for "brick, other than fire brick,"

etc.

The decision of the Board of General Appraisers is reversed.

BIBBER-WHITE CO. v. WHITE RIVER VALLEY ELECTRIC R. CO. (Circuit Court, D. Vermont. August 19, 1904.)

1. EMINENT DOMAIN-TAKing of Land WITHOUT PAYMENT ACQUIESCENCE OF OWNER.

Where a landowner expressly consents or clearly acquiesces in the taking of right of way over his land for a railroad without payment, his right to hold the land is gone and he has only a personal claim against the company for the debt.

2. SAME.

The absence of any agreement between a landowner and a railroad company as to the price to be paid for right of way, or the manner of determining the same, negatives a claim that the company was to be given credit, and the owner's right to the land can only be extinguished by ap praisal and payment.

In Equity.

John J. Wilson, for claimants.

Eleazer L. Waterman, for purchasers.

WHEELER, District Judge. This cause has been heard upon a report of commissioners agreed upon by the parties pursuant to a bond given by the purchasers of the railroad at the receiver's sale to secure the payment of land damages adjudged to be preferred above unsecured debts in a proceeding in which all might join. It is objected that the proceeding is irregular, and it would be so but for the provisions of the bond that cover the subject, which would be within the jurisdiction of the court in the cause upon motion at the foot of the decree, for which this proceeding appears to be substituted by stipulation of the parties, as shown by the bond and the