it against loss. In order to induce Sack to indemnify the surety company, Maaget delivered to him 29 shares of the Maaget Company as security against any loss he might sustain by reason of his indemnity. On September 25, 1908, proceedings in involuntary bankruptcy were instituted against Maaget. On January 19, 1909, the bankrupt moved in the superior court for a stay of proceedings on the ground that he had been adjudicated a bankrupt, and that the claim of the woolen company was one dischargeable in bankruptcy. That court denied the motion on the ground that the plaintiff could enter a modified judgment under which it could pursue its remedies solely against the surety company. Thereupon a motion was made in the bankruptcy court to vacate the attachment and discharge the surety company bond. This motion was denied upon condition that the American Woolen Company execute a bond in the amount of $10,000, conditioned that in the event of its recovery on the surety bond it will pay to the estate of the bankrupt the value of the 29 shares of stock of the Maaget stock, such value to be determined by a summary proceeding. Various propositions have been submitted: That, the bond having taken the place of the attachment, there was nothing to vacate; that the court could not on the mere motion of the bankrupt discharge the contract between the woolen company and the surety company-and others. None of these need be discussed because the petitioner has expressed his willingness to give a bond in the required amount for the payment to the estate of any judgment that may be recovered by the trustee against the woolen company to recover the 29 shares of Maaget Company stock or its proceeds, such action to be begun within a reasonable time to be fixed by the court. We think petitioner should be allowed to try out the propositions it advances, without being summarily foreclosed, and that the security offered will sufficiently protect the estate. The order of the District Court is modified accordingly. See, also, 173 Fed. 232.

MARKS v. FIREMAN'S FUND INS. CO. (Circuit Court of Appeals, Second Circuit. July 1, 1910.) No. 309. Appeal from the District Court of the United States for the Southern District of New York. Lawrence Kneeland and Thomas D. Hewitt (Kneeland & Harison, of counsel), for appellant. Wing, Putnam & Burlingham (Everit Masten, of counsel), for appellees. Before LACOMBE, WARD, and NOYES, Circuit Judges.

WARD, Circuit Judge. The decree (175 Fed. 222) is affirmed.
NOYES, Circuit Judge, dissents.

In re RAPHAEL. RAPHAEL et al. v. CHICAGO TITLE & TRUST CO. (Circuit Court of Appeals, Seventh Circuit. May 17, 1910.) No. 1,327. Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division. Harvey Strickler, for appellant. Julius Moses, for appellee. Before BAKER and SEAMAN, Circuit Judges, and HUMPHREY, District Judge.

PER CURIAM. Appellee, as trustee of the bankrupt, sued appellants to recover from them a part of the bankrupt's estate alleged to be in their hands. The cause was referred to a special master, with directions "to hear, take proofs, and report his conclusions and recommendations thereon to the court." The master reported his findings of fact, and recommended a decree against appellants. Of the legal sufficiency of the findings to support the decree there is no doubt. The main questions argued here require for their proper determination a consideration of the evidence. The master was not directed to report the evidence, and he did not return it to the court with his findings. The decree was rendered on June 14, 1906. On July 20, 1906, after the court had overruled appellants' motion for leave to file the master's transcript of the evidence nunc pro tunc as of June 14th, the transcript was filed in the office of the clerk of the trial court. At and prior to the hearing in court no effort was made to have the master directed to report the evidence to the court, and no exceptions were filed in court challenging the sufficiency of the evidence to sustain the master's findings of fact. Manifestly it would be un

fair to appellee and to the trial court to permit appellants to contend for a reversal on account of matters which the record fails to show were presented to the trial court. The decree is affirmed.

SALMON et al. v. AUSTRO-AMERICAN STAVE & LUMBER CO., Limited. (Circuit Court of Appeals, Second Circuit. May 9, 1910.) In Error to the Circuit Court of the United States for the Eastern District of New York. Before LACOMBE, COXE, and NOYES, Circuit Judgès.

PER CURIAM. The order granting supersedeas should be vacated, without prejudice to defendants applying before the expiration of the December (1909) term to the Circuit Court for opening and re-entry of the judgment or for such other relief as they may be advised.

SANBERN v. WRIGHT & COBB LIGHTERAGE CO. (two cases). (Circuit Court of Appeals, Second Circuit. June 14, 1910.) No. 285. Appeal from the District Court of the United States for the Southern District of New York. Wray & Callaghan and Nelson Keach, for appellant. Kneeland & Harison, for appellee. Before LACOMBE, WARD, and NOYES, Circuit Judges.

PER CURIAM. Decree affirmed on opinion of District Judge (171 Fed 449), with interest and costs.

In re TOMMY. (Circuit Court of Appeals, Second Circuit. June 14, 1910.) No. 227. Appeal from the District Court of the United States for the Southern District of New York. Appeal from a decree of the District Court, Southern District of New York, fixing the value of petitioner's barge at $3,500 and adjudging that claimant is entitled to recover $3,500 on account of damages sustained from the death of her husband. James J. Macklin and De Lagnel Berier, for appellant. Charles C. Sanders (Herbert C. Smyth and Charles C. Sanders, of counsel), for appellee. Before LACOMBE, COXE, and WARD, Circuit Judges.

PER CURIAM. When this cause was here before (The Tommy, 151 Fed. 570, 81 C. C. A. 50), we considered the facts of the accident, the condition of the tongs and the circumstances under which they were furnished; the court below having found that the tongs were defective and that the accident was principally attributable thereto. We reversed the decree which refused to allow a limitation of liability, but did not question the correctness of his other findings, "as he saw and heard the witnesses," remanding the cause with instructions to enter a decree in accordance with our opinion. The District Court has now found the value of the barge to be $3,500, that the damages resulting from the death of Johnson were $7,000, and that it is not necessary to determine whether or not deceased was negligent, because, if he were, the result would be only to divide the damages, while his total recovery under our former decision must be limited to the value of the barge ($3,500). We have examined the record now presented, concur with the conclusions of the District Judge, and see no reason to modify our former decision that the defective condition of the tongs furnished by the master of the barge, who was in that particular an alter ego of the owner, was the principal cause of the accident. Decree affirmed, with interest and costs. See, also, 168 Fed. 563.

UNITED STATES DECALCOMANIA CO. v. AMERICAN TRUST & SAVINGS BANK. (Circuit Court of Appeals, Seventh Circuit. May 20, 1910.) No. 1,702. Alvin H. Culver, for appellant.

PER CURIAM. Appeal dismissed pursuant to the provisions of section 1, rule 16 (150 Fed. xxix, 79 C. C. A. xxix), April 22, 1910.

WEIL V. PERELES et al. (Circuit Court of Appeals, Seventh Circuit. May 20, 1910.) No. 1,517. Appeal from District Court of the United States for the Eastern District of Wisconsin. H. K. Butterfield and E J. Henning, for appellant. T. W. Spence, for appellees.

PER CURIAM. Appeal dismissed pursuant to stipulation, April 28, 1910. See, also, 157 Fed. 419.

WESTINGHOUSE AIR BRAKE CO. v. HEIN. (Circuit Court of Appeals, Seventh Circuit. May 20, 1910.) No. 1,654. Appeal from the Circuit Court of the United States for the Northern District of Illinois. Charles S. Buell and Charles P. Abbey, for appellant. D. S. Wegg and Walter H. Chamberlin, for appellee.

PER CURIAM. Appeal dismissed March 10, 1910, pursuant to stipulation." See, also, 172 Fed. 524.

BIRMINGHAM, C. & ST. A. R. CO. v. GORDON. (Circuit Court, S. D. New York. May 11, 1910.) Motion to Vacate Summons and Dismiss Suit. Hays, Hershfield & Wolf, for plaintiff. Hornblower, Miller & Potter, for defendant. NOYES, Circuit Judge. I am not so satisfied that section 1779 of the Code of Civil Procedure of the state of New York, either by itself or in connection with section 1780 of said Code, is in conflict with the provisions of the federal Constitution that I deem it my duty to hold it unconstitutional in deciding this motion. The motion for an order vacating the summons and dismissing the suit is denied.

CHATHAM v. DODGE. (Circuit Court, S. D. New York. June 17, 1910.) On Demurrer to Complaint. James P. Niemann, for plaintiff. Daly, Hoyt & Mason (Charles K. Carpenter, of counsel), for defendant.

HAZEL, District Judge. This action is for breach of contract, and the defendant has filed a demurrer to the complaint on the general ground that the complaint does not state facts sufficient to constitute a cause of action. The specific grounds of demurrer are that the contract alleged in the complaint is void for lack of mutuality, and is indefinite in time and revocable without liability to either party. I have examined into the matter, and think the demurrer should be overruled, with costs. Such an order may be entered and the defendant have leave to interpose answer within 20 days.

FINANCE CO. OF PENNSYLVANIA v. KRESGE. (Circuit Court, E. D. Pennsylvania. May 16, 1910.) No. 752. Action by the Finance Company of Pennsylvania against S. S. Kresge. Verdict for defendant, and plaintiff moves for a new trial. Granted. Stern & Wolf and George H. Earle, Jr., for plaintiff. C. Bradford Fraley, Oscar Wagner, and Charles Biddle, for defendant. J. B. MCPHERSON, District Judge. As I am at present advised, the verdict in this case appears to be for the right party, but the manner in which it was reached is not wholly satisfactory. I submitted a controlling question of fact upon which the weight of the evidence seemed to be with the plaintiff, and (to avoid confusing the jury) I abstained from referring to other questions which the plaintiff claimed to be questions of law that in any event would require a binding instruction in its favor. If the verdict had been for the plaintiff, obviously no decision upon these questions of law would have been necessary. But the jury came in with a verdict for the defendant, and I was therefore obliged to determine whether I would receive it, leaving the plaintiff's questions of law undecided, or whether I would decide the questions provisionally and direct a verdict for the plaintiff. The latter course had this advantage: That these questions of law might upon more deliberate consideration be found to justify the direction. In the hope, therefore, of thus ending the litigation, I concluded to direct a verdict for the plaintiff, but I am now inclined to doubt whether this direction can be sustained. At all

events, it will I think be more satisfactory to have the case tried before another jury, who may perhaps be able to settle the dispute finally, although the unavoidable delay of four or five months is to be regretted. A new trial is granted.

OLD DOMINION COPPER MINING & SMELTING CO. v. LEWISOHN et al. (Circuit Court, S. D. New York. June 17, 1910.) In Equity. On Motion to Amend Bill of Complaint. Louis D. Brandeis and Edward F. McClennen, for complainant. Hoadly, Lauterbach & Johnson, for defendants.

HAZEL, District Judge. This motion first came before Judge Noyes, who in his written memorandum intimated that, if the complainant had presented specific amendments to the different paragraphs of the original bill, he would have passed upon each of the proposed amendments and either allowed or disallowed them. Without endeavoring to pass specifically upon the various proposed amendments, it appears clearly enough that the amendments which the complainant desires to make to the original bill are thoroughly in line with its testimony, while the allegations of the original bill are not as claimed in accord therewith. Under the circumstances presented by the record, I am of the opinion that the proposed amendments should be allowed, and an order to that effect may be entered.

See, also, 176 Fed. 745.

PENNSYLVANIA STEEL CO. et al. v. NEW YORK CITY RY. CO. et al. FARMERS' LOAN & TRUST CO. v. METROPOLITAN ST. RY. CO. et al. GUARANTY TRUST CO. OF NEW YORK v. SAME. (Circuit Court, S. D. New York. June 27, 1910.) Nos. 2-9, 2-33, 2-149, 3–37.

LACOMBE, Circuit Judge. It is quite manifest that the situation with regard to these federal taxes presents questions which should not be summarily disposed of. Indeed, it is possible that some of them can be satisfactorily disposed of only after the United States Supreme Court shall have decided the cases in which reargument has been ordered. The proper course would seem to be for receivers to pay them, thus avoiding all possible penalties, and leaving the ultimate adjustments to be made hereafter. Such payment should be made, however, only under an order to the terms of which, in each case, the lessor company may agree, providing (as was done in the case of the franchise taxes) that the same shall be without prejudice to rights of lessee or bondholders, and that, in the event of its being finally decided that the lessor should pay these excise taxes, it will reimburse the receivers for the money now advanced to pay them. In cases where the lessors will not agree to the entry of such an order, the receivers should not take the responsibility of paying.

See, also, 176 Fed. 471.

THE MATANZAS et al. (District Court, E. D. Pennsylvania. June 8, 1910.) Ncs. 15, 44. In Admiralty. Final hearing. Francis C. Adler, John F. Lewis, and J. Frank Staley, for libelant. Howard M. Long, for respondent.

J. B. MCPHERSON, District Judge. In each of these cases the libelant, who is a part owner of the bark Matanzas and objected to a contemplated voyage, filed a libel asking that the majority owners be compelled to give security for the safe return of the vessel to the port of Philadelphia. In each case the bond has been entered in a sum fixed by the court, the voyage has been accomplished, and the vessel has been safely returned. While, therefore, the libelant is entitled to a formal decree in his favor, since he was exercising an undoubted right when he asked for security, nothing is now to be provided for except the costs. A decree may therefore be entered in each case in favor of the libelant for costs.

END OF CASES IN VOL. 179.

L50824