THE IDA MCKAY.

(District Court, D. Washington, W. D. February 26, 1900.) SEAMEN-RIGHT TO LEAVE SHIP-REFUSAL TO FURNISH WARM ROOM.

The refusal by the captain of a vessel to furnish a warm room for the use of the seamen in cold weather, as required by Act Dec. 21, 1898 (30 Stat. 755), after complaint made to him, is a breach of the shipping articles which justifies the men in leaving the vessel before the expiration of their term of service, and entitles them to recover wages for the time served.

In Admiralty. Suit for seamen's wages. Decree for libelants Irwin & Bridges, for libelants.

Gorham & Gorham, for claimant.

HANFORD, District Judge. I find, from the pleadings and evidence in this case, that the three libelants were lawfully shipped as seamen on the schooner Ida McKay, for a voyage from San Francisco to Gray's Harbor, thence to the Hawaiian Islands, and return to San Francisco, and proceeded on said voyage from San Francisco to Aberdeen, on Gray's Harbor, and until the arrival of the vessel at Aberdeen they performed their duties faithfully. I find, also, that the vessel failed to provide a safe and warm room for use of the seamen on said voyage, which began in the season of cold weather; and after arrival at Aberdeen the libelants made complaint to the captain of the lack of a heating stove in the forecastle, and that their clothing and bedding were wet, and they were cold. When this complaint was made, the act of congress of December 21, 1898 (30 Stat. 755), had gone into effect, which act, among other provisions, contains an amendment of section 4572, Rev. St., so as to positively require every vessel in the foreign and domestic trade to provide a safe and warm room for use of seamen in cold weather. Therefore, aside from considerations of humanity, the libelants were justified by the laws of the country in complaining of the discomfort which they suffered; but, instead of observing his duty in the matter, the captain positively refused to give any heed to their complaint. The only excuse offered for his conduct is that formerly there had been a stove in the forecastle, and, as he had not inspected the forecastle since August of the preceding year, he did not know that it was not still there; but the court can have no patience with a pretense on the part of the captain of a ship that he does not know how his vessel is furnished or equipped for a voyage, and that the lack of suitable furnishing was not known to him after he had been told of it, because, from sheer obstinacy, he failed to investigate. The next morning after making their complaint to the captain, the libelants showed their resentment of the contemptuous treatment which they had received by refusing to turn to, and thereafter, by the captain's orders, their meals were stopped. They remained with the vessel several days, but finally were obliged to leave her, or submit to the alternative of performing the voyage without the comfort of a warm room in which to live, which they were entitled to under the law.

Under the circumstances, I consider that it would be unjust and oppressive to decree a forfeiture of wages which the libelants earned

by faithful service. This case differs from The A. M. Baxter (D. C.) 93 Fed. 479, in the important particular that the libelants in this case did complain to the captain of the lack of proper heating apparatus before they refused to continue in the service of the vessel; and I hold that in this case the captain is blameworthy, and that the first violation of the contract contained in the shipping articles was on his part. A decree will be entered in favor of the libelants for the amount of their wages at the contract rate, from February 11 to March 3, 1899, both days inclusive, and for costs.

MEMORANDUM DECISIONS.

CIMIOTTI UNHAIRING CO. v. AMERICAN UNHAIRING MACH. CO. SAME v. MISCHKE. (Circuit Court of Appeals, Second Circuit. January 25, 1900.) Appeals from the Circuit Court of the United States for the Southern District of New York. Motions to remand both causes to the circuit court in order to enable that court to entertain motion for rehearing. See 98 Fed. 297. Henry Schreiber, for the motion. Louis C. Raegener, opposed. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. Such an order as that prayed for cannot be made on the application of the parties or either of them. The court below alone can make the request. Roemer v. Simon, 91 U. S. 149, 23 L. Ed. 267.

DEXTER V. KELLAS. (Circuit Court of Appeals, Second Circuit. January 30, 1900.) No. 98. In Error to the Circuit Court of the United States for the Northern District of New York. Sumner B. Styles, for plaintiff in error. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. No opinion. Order affirmed in open court.

FONG CHONG PAN v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. February 5, 1900.) No. 585. Appeal from the District Court of the United States for the Northern District of California. E. J. Banning, Asst. U. S. Atty. Dismissed pursuant to subdivision 1 of the sixteenth rule.

GERMAN SAVINGS & LOAN SOC. et al. v. NORTHWEST GENERAL ELECTRIC CO. (Circuit Court of Appeals, Ninth Circuit. January 8, 1900.) No. 446. Appeal from the Circuit Court of the United States for the District of Oregon. Milton W. Smith, for appellants. Ralph E. Moody, for appellee. Dismissed pursuant to stipulation of counsel.

THE HOWARD CARROLL. (Circuit Court of Appeals, Second Circuit. March 14, 1900.) No. 89. Appeal from the District Court of the United States for the Southern District of New York. Robt. D. Benedict, for appel

lant. Wilhelmus Mynderse, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. We have carefully examined the record in this cause, and have reached the conclusion that the decree of the district court be affirmed, with interest and costs.

ILLINOIS CENT. R. CO. v. BOUSLOG. (Circuit Court of Appeals, Fifth Circuit. March 5, 1900.) No. 853. In Error to the Circuit Court of the United States for the Eastern District of Louisiana. Girault Farrer, for plaintiff in error. Chas. S. Rice, A. E. Billings, and R. B. Montgomery, for defendant in error. Before PARDEE and SHELBY, Circuit Judges.

PER CURIAM. The judgment of the circuit court in this case is affirmed.

THE LADY WIMETT. (Circuit Court of Appeals, Second Circuit. January 24, 1900.) No. 59. Appeal from the District Court of the United States for the Northern District of New York. John W. Ingraham, for appellant. Geo. S. Potter, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. No opinion. Decree affirmed, with costs, on opinion of court below. 92 Fed. 399.

LAPPIN BRAKE-SHOE CO. v. CORNING BRAKE-SHOE CO. (Circuit Court of Appeals, Second Circuit. March 14, 1900.) No. 115. Appeal from the Circuit Court of the United States for the Northern District of New York. J. D. Gallagher, for appellant. Edmund Westmore, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. No opinion. Decree affirmed, with costs, on opinion below. 94 Fed. 162.

LAWRENCE v. GRAND RAPIDS SAV. BANK. (Circuit Court of Appeals, Sixth Circuit. November 15, 1899.) No. 702. In Error to the Circuit Court of the United States for the Western District of Michigan. N. A. Fletcher, for plaintiff in error. Willard A. Keeney, for defendant in error. No opinion Affirmed.

LEDOUX v. FORRESTER et al. (Circuit Court of Appeals, Ninth Circuit. January 8, 1900.) No. 568. Appeal from the Circuit Court of the United States for the Eastern Division of the District of Washington. W. B. Heyburn, Littleton Price, E. M. Heyburn, and L. A. Doherty, for appellant. Albert Allen, for appellees. Dismissed pursuant to stipulation of counsel. See (C. C.) 94 Fed. 600.

MACY et al. v. PERRY. (Circuit Court of Appeals, Second Circuit. February 6, 1900.) No. 603. Appeal from the District Court of the United States for the Southern District of New York. Frederick M. Brown, for appellant. J. Parker Kirlin, for appellees. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. We are satisfied with the decision of the court below, and concur in the opinion of the district judge (91 Fed. 671) in respect to all the questions presented by the assignments of error of the appellant. The decision is therefore affirmed, with interest and costs.

THE MELROSE. JONES v. OGILVIE. (Circuit Court of Appeals, Sixtb Circuit. November 16, 1899.) No. 730. Appeal from the District Court of the United States for the Eastern District of Michigan. F. S. Masten, for appellant. John H. Goff, for appellees. No opinion. Affirmed.

MINOR v. JONES. (Circuit Court of Appeals, Sixth Circuit. November 15, 1899.) No. 713. Appeal from the Circuit Court of the United States for the Southern District of Ohio. J. R. Shindel, for appellant. H. P. Lloyd, for appellee. No opinion. Reversed.

NEW ENGLAND R. CO. v. CONROY. (Circuit Court of Appeals, First Circuit.) Question of law certified to the supreme court of the United States. See 20 Sup. Ct. 85, Adv. S. U. S. 85, 44 L. Ed.

PATTON et ux. v. CLARK et al. (Circuit Court of Appeals, Sixth Circult. December 4, 1899.) No. 718. Appeal from the Circuit Court of the United States for the Western District of Tennessee. Before TAFT, LURTON, and DAY, Circuit Judges.

LURTON, Circuit Judge. This was a bill filed by the trustee to enforce a mortgage on realty in Tennessee, made to secure a note executed to the JarvisConklin Mortgage Trust Company, a foreign corporation, which had not complied with the Tennessee statute prohibiting foreign corporations from doing business within the state before registering their charters. The note purported to be made at Kansas City, Mo., the place of the principal office of the Jarvis-Conklin Mortgage Trust Company, which was a corporation of the state of Missouri, and was payable at Kansas City. This note was indorsed without recourse, before maturity, for value, and without notice of any infirmities, to the complainant below, John W. Clark. The defenses are substantially those presented by the case of Hamilton v. Fowler (C. C. A.) 99 Fed. 18, and was submitted upon the argument made in that case. The case is governed by the opinion in that case this day filed, and is, upon the authority of that decision, affirmed, with costs.

THE PHOENICIA. (Circuit Court of Appeals, Second Circuit. March 14, 1900.) No. 66. Appeal from the District Court of the United States for the Southern District of New York. Everett P. Wheeler, for appellant. Harrington Putnam and Wilhelmus Mynderse, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. No opinion. Decree affirmed, with interest and costs, on opinion below. 90 Fed. 116.

SCHNELLER v. NEW ORLEANS & N. E. R. CO. (Circuit Court of Appeals. Fifth Circuit. March 5, 1900.) No. 792. In Error to the Circuit Court of the United States for the Eastern District of Louisiana. J. J. Prowell and Carroll & Carroll, for plaintiff in error. H. H. Hall, for defendant in error. Before PARDEE and SHELBY, Circuit Judges.

PER CURIAM. The judgment of the circuit court in this cause is affirmed.

STANDRIDGE et al. v. SUPREME LODGE ORDER OF GOLDEN CHAIN. (Circuit Court of Appeals, Fifth Circuit. January 30, 1900.) No. 907. Appeal from the Circuit Court of the United States for the Northern District of Georgia. Docketed and dismissed pursuant to the sixteenth rule.

TENNESSEE COAL, IRON & RAILROAD CO. v. PIERCE. PIERCE v. TENNESSEE COAL, IRON & RAILROAD CO. (Circuit Court of Appeals, Fifth Circuit. February 13, 1900.) No. 846. In Error to the Circuit Court of the United States for the Northern District of Alabama. W. A. Percy and W. I. Grubb, for Tennessee Coal, Iron & Railroad Co. W. A. Gunter, for Pierce. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. This case has heretofore been before this court (52 U. S. App. 355, 26 C. C. A. 632, 81 Fed. 814), and before the supreme court of the United States (173 U. S. 1, 19 Sup. Ct. 335, 43 L. Ed. 591), and the main propositions of law involved, including the rule of damages, have been conclusively settled. On the last trial in the circuit court the trial judge made rulings on both sides, which are here made the basis of 51 assigned errors. Forty-five of them relate to instructions to the jury, given and refused. It is unnecessary to pass specifically upon these rulings, and we only observe in relation thereto that, if they were erroneous, there was practically a compensation of errors, for none of them seem to have misled the jury from the law and facts of the case. The general charge given by the trial judge appears to be full, and to cover the law of the case, and the verdict of the jury does substantial justice between the parties. No useful purpose will be subserved by a prolongation of the litigation. The judgment of the circuit court is affirmed on both writs, and the costs will be apportioned accordingly.

TEXAS & P. RY. CO. v. REISS et al. (Circuit Court of Appeals, Second Circuit. March 16, 1900.) No. 150. In Error to the Circuit Court of the United States for the Southern District of New York. Rush Taggart, for plaintiff in error. Treadwell Cleveland, for defendants in error. Before WALLACE and SHIPMAN, Circuit Judges. No opinion. Judgment affirmed on the opinion in the former appeal. 98 Fed. 533.

TULLIS V. LAKE ERIE & W. R. CO. (Circuit Court of Appeals, Seventh Circuit.) Questions of law certified to the supreme court of the United States. See 20 Sup. Ct. 136, Adv. S. U. S. 136, 44 L. Ed. 175 U. S. 348.

UNITED STATES v. DALLES MILITARY ROAD CO. et al. (Circuit Court of Appeals, Ninth Circuit. February 14, 1900.) No. 434. Appeal from the Circuit Court of the United States for the District of Oregon. John H. Hall, U. S. Atty. Huntington & Wilson, G. G. Gammons, R. B. Lamson, Barin & Ward, Seneca Smith, J. K. Kelly, Richard Nixon, Chester V. Dolph, Carey & Mays, and P. Tillinghast, for appellees. Dismissed.