remained until nearly the time of the collision, when it was put back in the binnacle. The mate explains this by stating that he was afraid of steamers, and always used this precaution. It was very bad practice on his part, and. if it had any effect in producing collision, the vessel should be condemned for it. The steamship claims that she supposed that the light was one of an overtaken vessel shown in conformity with article 10 of the sailing rules."

He excused the schooner (1) because it was doubtful whether the steamer changed her course, by reason of the misleading light, sufficiently to bring about collision; and (2) because the exhibition of that light was in the extremity of collision.

In the first of these propositions we are unable to concur. There is no testimony and no conceivable reason why the steamer should have changed her course before she saw the schooner's light. She had laid her compass course at Nantucket lightship for Fire Island lightship, and only the presence of some other vessel to be avoided would have induced a departure from it. The light first seen was a white light a little on the port bow. The captain and the second and fourth officers, all on the bridge, so testify. The lookout in the crow's nest (called by libelants) says that he heard the lookout at the bow report "light on the port bow," and soon thereafter he himself saw a white light right ahead. All of these witnesses saw a green light a little later, but the helm had been already ported in the belief that the white light was displayed by an overtaken vessel. One witness only, the lookout in the bow, also called by libelant, testified that he first saw a green light on the port bow. His evidence is unpersuasive. When confronted with a contradictory statement which he had signed, he sought to explain it away by saying that he was drunk when he signed it. This explanation was disproved by several persons who were present at the time. Moreover, he insists that he warned them on the bridge by singing out that "he had better put his helm hard down, otherwise he would go right into the schooner." If he did see a green light a little on the port bow or about ahead, this was a manoeuvre certain to produce disaster. Further questioning apparently warned him of the effect of this testimony, for he states that by "hard down" he meant "hard astarboard." Since the wind at the time was coming over the starboard quarter, the explanation is a lame one, and we think his whole testimony entitled to no credit. It seems to us well established that the white light did mislead the steamer, and that if she had not ported to pass it, but had made no change till the green light became visible, she could then have starboarded and passed in safety.

With some doubt, however, we concur in the conclusion that the exhibition of the binnacle light is to be excused because it was in extremis. Counsel for the steamer contends that there are serious contradictions in the testimony of the mate of the schooner; but, upon a careful analysis of the evidence, we think they are more apparent than real, and are satisfied that he did not exhibit the binnacle light till just as he called the captain, when for some little time the steamer. showing her mast-head and red light and some lights through the dead lights on her port side, was bearing down on him apparently unconscious of the schooner's proximity. There are sufficient instances

in the reports of steamers navigating the North Atlantic in fog at a rate of speed too great to enable them to discover the presence of privileged vessels in time to avoid them to insure the court's appreciation of the mate's remark, "Every time I see a steamer, I think she is going to run into us.' No antecedent fault on the part of the schooner had produced the perilous situation. She was sounding her fog horn, a good one, and kept her course and speed until the end. The apparent risk was induced by the fault of the steamer in running in a fog so thick (as the second officer says). that a light could not be seen until less than the ship's length away, and at a rate of speed so high that she was almost on top of the schooner before her navigators heard the fog horn. Under these circumstances, we are not inclined to hold the schooner in fault because the mate, terrified in the presence of impending peril, lost his head so completely as to do the one thing which made the threatened catastrophe certain.

As to the damages the commissioner has followed the authority of La Champagne (D. C.) 53 Fed. 398, which lays down the rule to be followed in similar cases. As to minor criticisms of his findings, we concur with the district judge that they are without merit.

The decree is affirmed, with interest; but, since both sides ap· pealed, without costs of this appeal.

ERIKSSON v. GOODWIN et al.

(Circuit Court of Appeals, Second Circuit. April 30, 1907.).

No. 245.

NEGLIGENCE-DEFECTIVE CAR COUPLING-FAILURE TO INSPECT.

A train of cars loaded with sand and operated by defendants was being backed upon a pier for the purpose of dumping the sand into a scow which was hired by defendants, when the coupling between the locomotive and the first car broke, and the cars ran by their acquired momentum with such force against the bumper at the end of the track that the end car mounted the bumper and spilled its load upon the scow, injuring libelant, who was the wife of the owner and rightfully on the scow and at the place where the injury occurred. The evidence tended to show that the breaking of the coupling was due to improper handling of the cars by the engineer or to its defective condition. Held that, in either case, the defendants were chargeable with negligence, which rendered them liable for the injury, in the absence of any evidence to show the condition of the coupling, or that it had been recently examined to ascertain whether it was safe for ordinary use.

Appeal from the District Court of the United States for the Southern District of New York.

W. J. Martin and John F. Foley, for appellants.

Nelson Zabriskie and Hyland & Zabriskie, for appellee.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. As the witnesses in this case were examined in the presence of the district judge, and his conclusions upon the facts depend wholly upon the weight he gave to their testimony, and his opin

ion of their credibility and intelligence, the case is not one in which it would be proper for the court to interfere with his findings of fact.

The libelant is the wife of the owner and master of a scow boat, and resided with him upon the boat, and, while the boat was receiving a load of sand from the appellants at their dumping trestle, she was injured by being struck with part of a car load which was prematurely dumped, and fell upon the place on the scow where she happened at the time to be, instead of the part of the boat where the sand ordinarily would have been dumped. The scow was in the usual place, under the dumping trestle, and was there by the implied invitation of the appellants who had been loading it with sand, and, after it had been loaded and had carried away is loading several times, her husband had returned for another load. Customarily the sand was brought to the dumping trestle by a train of cars belonging to the appellants and operated by their employés, and, when one of the cars was brought into the proper position, it was dumped from the side against a shield, and thus the sand was directed and thrown into the scow below. On the occasion in question the train consisted of six loaded cars attached to a locomotive which was backing them to the dumping place, and, when the train was some little distance away, the coupling between the locomotive and the car to which the locomotive was attached gave way, and the train by the momentum which it had previously acquired ran with such force against the bumper at the rear of the track and dumping place that the front car mounted the bumper, and spilled its contents on the boat below. If the coupling had not given out, the locomotive could have so regulated the movement of the train as to bring the cars safely into the proper position for being dumped.

The only question in respect to which there is any fair doubt is whether the district judge should have found the appellants guilty of negligence. The libelant was properly upon her husband's scow. and all those who were properly upon it were there upon the implied promise of the appellants to use reasonable care that they should not be subjected to any unnecessary danger during the loading operations.

The evidence indicates that the coupling gave way, either because it was so defective that it was unsafe for ordinary use, or because the engineer shut off the steam of the locomotive too abruptly. If the coupling was unsafe for ordinary use, and liable to break, although not subjected to any unusual strain, the appellants knew or were bound to know that it might give out at a critical time and under conditions similar to those in the present case. They were also chargeable with knowledge that, if it should give out under such circumstances, the safety of the persons upon a boat under the dumping place would be more or less jeoparded. Consequently they were under the duty of exercising ordinary care to ascertain whether it was in a reasonably fit condition for use upon the occasions when its use was required. No evidence of the slightest value was offered by them to show the previous condition of the coupling, or how long it had been in use. or that there had been any recent examination of it to ascertain whether it was safe for ordinary use. If it broke without being subjected

to any extraordinary strain by the act of the engineer in shutting off the steam of his engine too abruptly, the presumption is that it was not fit for ordinary use. On the other hand, if the coupling gave way because of the carelessness of the engineer, the defendants were liable because his negligence is to be imputed to them. Whether the accident happened from the one cause or the other, or from the combination of both, we think negligence was sufficiently established. The judgment is affirmed, with interest and costs.

McCALMONT v. LANNING.

(Circuit Court of Appeals, Third Circuit. April 19, 1907.)

No. 9.

BANKS AND BANKING-DISCOUNT OF FRAUDULENT PAPER-KNOWLEDGE OF OFFICER.

A bank is not chargeable with notice of fraud in the inception of a note which it discounted merely because its president had knowledge of the facts, which was gained by him in his capacity as an officer of another corporation, where he had nothing to do with the discounting of the note, and had no knowledge of it at the time.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Banks and Banking, §§ 285, 286.]

In Error to the Circuit Court of the United States for the District of New Jersey.

E. R. Walker, for plaintiff in error.

John S. Applegate, for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and LANNING, District Judge.

BUFFINGTON, Circuit Judge. In this case John E. Lanning, receiver of the Monmouth Trust & Safe Deposit Company, brought suit against Robert McCalmont on a negotiable promissory note for $5,000, dated January 28, 1903, payable to his own order in four months, and by him indorsed. The court below gave binding instructions for plaintiff, which action is here assigned for error.

After examining the proofs, we are of opinion there was, under the proofs, no question to submit to the jury. Assuming, for present purposes, that fraud was practiced on the defendant in securing from bin the note for the stock of the Fraser Mountain Copper Company, and that Twining, the president of that company, had knowledge of that fact, still the mere fact that such officer was also president of the plaintiff company does not visit the latter with notice. There is nothing in the record tending to show that the trust company did not discount the note in good faith before maturity, or that Twining had anything to do with, or indeed knew of, its discount. Now in Willard v. Denise, 50 N. J. Eq. 482, 26 Atl. 29, 35 Am. St. Rep. 788, it is held that to visit a bank with knowledge of its officer, gained in another relation, two things are necessary: First, possession by the agent of pertinent information; and, second, such agent's participation in the discount

151 F.-23

or purchase on behalf of the corporation. In view of that case and of First National Bank v. Christopher, 40 N. J. Law, 439, 29 Am. Rep. 262, and Barnes v. Trenton Gaslight Co., 27 N. J. Eq. 33, we hold the trust company was not visited with the knowledge of its president, Twining, and was, therefore, an innocent purchaser.

The remaining question relates to a dispute as to whether the trust company paid a certain check of the Fraser Mountain Copper Company, and charged that company with such payment. The plaintiff in error contends there was evidence tending to show that the sum of $6,678.81 (being the amount for which the check is alleged to have been given) was, after February, 1905, fraudulently entered as a debit item in the account of the Fraser Mountain Copper Company, and that the trial court erred in not submitting that evidence to the jury on the question of alleged fraud. Now such question of fraud rests wholly on the testimony of Percival Kroehl, who says he examined the ledger account of the Fraser Mountain Copper Company in February, 1905; that the foregoing item of $6,678.81 was not in it at that time, and that he then made a copy of the account which shows that fact. An examination of the proofs shows to a demonstration that he overlooked that item in making his copy. Without going into a full analysis, it suffices to say that Kroehl's copy shows a credit balance of $184.02 when he made it. Now that balance cannot be obtained from the items in his copy unless the item of $6,678.81 is placed in the debit column. When to this is added the uncontradicted testimony of the accountant of the banking department of the state of New Jersey that he examined the books in February, 1903, and not only then found the item in the account, but that he found it also in a check list kept by the trust company, it conclusively appears that the item had been paid on the check above mentioned. There being no evidence upon which the court could have sustained a verdict in favor of the defendant, a direction to find in favor of the plaintiff was not error. Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003.

The judgment is affirmed.

THE ASHER J. HUDSON.

(Circuit Court of Appeals, Second Circuit. June 30, 1907.)

No. 262.

TOWAGE-ABANDONMENT OF TOW-LIABILITY OF TUG.

Evidence held to support the finding of the trial court that the leaking of a barge in tow which made it necessary to abandon her did not result from her grounding through the fault of the tug, but that it was due to her unseaworthy condition; and the tug also held not in fault for not sooner going in search of the barge after her crew had been taken off and she had gone adrift at sea in the night, in view of the belief of all parties that she had foundered.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Towage, § 36.] Appeal from District Court of the United States for the Southern District of New York.

On appeal from a decree of the District Court for the Southern District of New York dismissing the libel of the owners of the barge Centi