SMITH V. HEINLEIN et al.

JEKYLL v. SMITH.

(District Court, S. D. New York. October 6, 1904.)

1. SHIPPING-CHARTER TO CARRY MAHOGANY LOGS-REFUSAL TO TAKE CARGO OFFERED.

Evidence considered, and held to establish that a cargo of mahogany logs tendered for loading to a schooner under a charter were not of unusual size in the trade, and that the refusal of the master to take any except smaller logs selected by him was not justified, and rendered the vessel liable to the charterer in damages, whether such refusal was due to the unsuitableness of the vessel for the service for which she was chartered or to her want of proper tackle for loading.

In Admiralty.

MacFarland, Taylor & Costello, for John S. Smith.

Hotchkiss & Barber (Joseph B. Handy, advocate), for Jekyll and Heinlein et al.

ADAMS, District Judge. The first of the above entitled actions was brought by John S. Smith, the master and part owner of the schooner J. L. Nelson to recover the sum of $2,000, besides port charges, for transporting a cargo of mahogany logs from Puerto Barrios, Guatemala, to New York City by said schooner in May, 1903, under a charter party dated February 18, 1903, made between Smith, as part owner and master, and Eggers & Heinlein, of New York. The second action was brought by the owner of the logs against Smith to recover the damages sustained by him in consequence of the master's refusal to receive and transport all of the logs offered.

The schooner at the time of the execution of the contract was in Boston, under the charge of the libelant Smith. The charter provided for "a full cargo under and upon deck of cedar and or mahogany or other lawful merchandise," to be paid for in a lump sum, with port charges, &c., upon discharge of the cargo. It further provided:

"Vessels capacity guaranteed 400 tons 40 c. f. actual contents mahogany, if vessel can not take the 400 tons aforesaid if tendered by shipper, charterers to have a corresponding reduction. No logs to be cut without written consent of charterers or agent."

The schooner proceeded to Puerto Barrios and was there tendered a quantity of mahogany logs, a portion of which she received, rejecting the remainder because it was contended, they were too large for her loading hatch. Not being furnished with a complete load of logs in sizes to suit the master, she sailed partly loaded and having delivered the logs she carried, freight being refused, an action was brought by Smith to recover the full amount of $2,000 and charges. The cargo that was left was brought by the steamer Arcadia and the consignees declined to make any payment on the ground that the vessel had failed to perform her agreement and the owner Jekyll had suffered damages in consequence amounting to more than any benefit received from the transportation of the logs the vessel did carry. The second action was brought to recover the damages alleged to have been sustained through

the schooner's refusal to carry the logs tendered, said to amount to $2,000.

The controversies turn upon the question whether the vessel was justified in refusing the logs.

After a careful consideration of the testimony, I conclude that she was not. By resort to a proper method of loading, including the possible removal of one of the vessel's stanchions, which could have been done without substantial injury to her, a sufficient quantity of the logs could have been taken in the hold through the loading hatch to have properly filled the vessel and given opportunity to shore up the deck so that the remainder of the tendered logs could have been brought to New York in accordance with the contract. But this was not done. The master absolutely rejected some of the large logs in the very beginning and loaded his vessel with the smaller ones, selected by him, so that no room was left under the hatchway for the proper handling of the larger logs, which might, with care and the use of proper appliances, have been loaded without detriment to her. He was doubtless influenced by the insufficiency of his tackle, though he did not finally put it upon that ground but the size of the logs. In the beginning, however, he said he had no blocks or falls large enough to hoist logs of the size tendered, but it was his duty to have provided the vessel with what was necessary. He was apparently ignorant of the requirements of the trade and the vessel's contention is based upon what is called "ordinary" logs, which it is said those tendered were not but excessive in size. The testimony, however, tends to show that the logs were not of an unusual size but what might have been expected from the character of the trade. It was, therefore, the vessel's duty to take them. The owner of a vessel is bound to see that she is seaworthy and suitable for the service in which she is to be employed. Work v. Leathers, 97 U. S. 379, 24 L. Ed. 1012. If these logs were of the ordinary commercial character in size and weight, as I find, then the vessel had no excuse for failing to take them, and the charterers and the owner of the logs, through them, are entitled to the damages suffered because she did not do so.

Decree dismissing the libel of Smith and sustaining that of Jekyll, with an order of reference.

In re HOWLEY-DRESSER CO.

(District Court, S. D. New York. September 13, 1904.)

1. BANKRUPTCY-PROPERTY PASSING TO TRUSTEE-COPYRIGHT.

A copyright for a publication held under an absolute assignment from the author to the assignee, his successors and assigns, is property of the assignee, which passes to his trustee in bankruptcy.

In Bankruptcy.

Hays & Hershfield, for Theodore F. Morse, petitioner.

Henry Lesser, for receiver.

HOLT, District Judge. This is a motion that the receiver execute and deliver to Theodore F. Morse an assignment of the copyrights

held by the bankrupts of certain songs composed by Morse. The moving party relies on the case of Re McBride & Co., 132 Fed. 285, 12 Am. Bankr. R. 81. In that case the bankrupt held the record title to certain copyrights under an agreement by which it agreed to publish the copyrighted books. The agreement contained provisions that upon any failure to perform the agreement all of said copyrights should revert to and become the exclusive property of the author, who in that event had an option to purchase the plates used at a fixed price, and also contained a provision that no assignment or transfer of any interest in the copyrights should be valid unless made with the written consent of the author. I think, in that case, the contract amounted, in substance, to an agreement for the publication of the book, the publisher having no right to transfer the copyright, and the author retaining the right to take it back if the particular publisher chosen did not continue the publication. It was held in that case that the contract involved personal trust and confidence, and that it could not be assigned to another by the trustee in bankruptcy without the author's consent. By the contract in this case there was an absolute and unqualified assignment of the copyrights to the bankrupts and their successors or assigns. I think it clear that in such a case the copyright is a part of the bankrupts' property which passes to the trustee in bankruptcy. The bankrupt act (Act July 1, 1898, c. 541, § 70, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]) explicitly so provides. It has been so held under previous bankrupt acts. Lowell on Bankruptcy, § 318; Drone on Copyright, p. 322. The question always is in such cases whether the agreement is merely an arrangement to publish under the copyright or an actual transfer of the copyright. Reade v. Bentley, 4 Kay & John. 656. Motion denied.

In re HEEBNER et al.

(District Court, E. D. Pennsylvania. November 7, 1904.)

No. 1,842.

1. BANKRUPTCY-EXCEPTIONS TO DISTRIBUTION-TIME FOR FILING. Exceptions to a proposed distribution of a bankrupt estate must be filed before the final decree of confirmation is entered, and exceptions, and a petition for review based thereon, not filed until after such confirmation and after the final dividend has been distributed in accordance therewith, will not be considered.

In Bankruptcy. On certificate from referee.

R. Albert Freiler, for exceptant.

J. B. MCPHERSON, District Judge. The question that is attempted to be raised by this certificate is not properly before the court. The facts are as follows: The trustee's account was confirmed by the referee on August 27, 1904, and a dividend sheet, deducting commissions and fees and distributing the balance among creditors, was prepared on September 10. On September 12 a notice was sent to each creditor, announcing the declaration of the dividend, and stating that if no exceptions to the distribution were filed on or before September

24 the distribution would be confirmed absolutely and the dividend would be paid by the trustee on September 27. No exceptions having been filed, the distribution was confirmed absolutely on September 26, and several days-afterward the money was paid out by the trustee. October 7 exceptions to the distribution were filed by two of the creditors, objecting to the fees of the referee, and on the same day a petition for review was presented under general order 27 (89 Fed. xi, 32 C. C. A. xxvii). On the same day the referee granted the petition, and on October 8 certified the same to the court for decision.

As I have already intimated, the course of proceeding adopted in this case is at variance with the well-established practice in this district, which requires that exceptions to a proposed scheme of distribution must be filed before the final decree of confirmation is entered, and cannot be considered without special allowance if they are filed afterward. See Equity Rules (Sup. Ct.) rule 83; (C. C.) rule 9; Rules at Law (C. C.) rule 4; Id. (D. C.) rule 23, § 1; Rules in Admiralty (D. C.) rule 59. The reasons in support of the practice are obvious. Objections to a proposed distribution should be made while the schedule is still pending, in order that the final decree may dispose of all contested matters, and may make a complete distribution of the fund. Otherwise, as in the present case, there might be two decrees (and situations which would require more than two are easily conceivable), with their attendant inconvenience and expense. Moreover, the practice adopted by the present petitioners is in plain violation of the rule of evidence that presumes conclusively the correctness of a final decree; for it seeks to attack such a decree, although it is still standing upon the record unopened and unreversed. It is only fair to the referee, also, that he should have an opportunity of hearing the objections to his proposed distribution, and of correcting what may be erroneous before he enters the final order of confirmation, and it is the right of the other creditors to be informed in proper season of such objections, in order that they may take such action thereon as they see fit. So far as appears, no other creditors than the petitioners have had notice of the pending exceptions, or an opportunity to argue the questions raised thereby.

In accordance with these views, the exceptions to the distribution and the petition for review are dismissed, at the costs of the excepting creditors.

1. INDIANS-SUIT TO RECOVER ALLOTTED LANDS-JURISDICTION AND PARTIES. The jurisdiction of suits by Indians, involving their right to lands allotted under any law or treaty, conferred on the circuit courts of the United States by Act Aug. 15, 1894 (28 Stat. 305), as amended by Act Feb. 6, 1901 (31 Stat. 760), is exclusive, but in all such actions the United States must be made a party defendant as therein provided.

In Equity. Suit by Indians to recover an interest in allotted lands. On demurrer to bill.

R. J. Slater, Charles H. Carter, and J. H. Raley, for plaintiffs.
John H. Hall, U. S. Atty., for defendant the United States.
H. J. Bean and James A. Fee, for defendant John Damon.

BELLINGER, District Judge. In this case there was an allotment to Maggie Damon. John Damon was the husband of the allottee. Thereafter the Damons legally adopted Ellen Parr. Maggie Damon subsequently died, leaving, surviving her, her husband, John Damon, a son, Isaac Gober, a daughter, Rosa Gober (now Rosa Parr), and the adopted daughter, the complainant Ellen Parr. Thereafter Isaac Gober died, leaving as his only heirs said Rosa and said Ellen, the plaintiff, who claims one-half interest in the allotted lands. John Damon, the husband, is in possession, collecting all the rents and profits, to the exclusion of both Rosa and Ellen. Rosa claims to be entitled to the whole thereof.

In this case, as in the others, in order that any decree shall be effective, the United States must be made a party in the suit, and this can only be done in pursuance of the authority conferred by the act of 1894 (28 Stat. 305), as amended by that of February 6, 1901 (31 Stat. 760). There can be no proceeding of the character in question other than that provided for by the acts of Congress referred to. The jurisdiction conferred by those acts is exclusive in courts of the United States. The demurrer is overruled.

J. S. APPEL SUIT & CLOAK CO. v. BAGGOTT et al.
(District Court, E. D. New York. November 9, 1904.)

1. REMOVAL OF CAUSES-DIVERSITY OF CITIZENSHIP.

A suit brought in New York by a nonresident against a citizen and resident of New York and a citizen and resident of New Jersey-service being made on both in New York-is not removable by either defendant on the ground of diversity of citizenship; the first being precluded by his residence in the state, and the second because the suit could not have been begun in the federal court in New York against him by service made in that state.

On Motion to Remand to State Court.

S. S. Myers, for plaintiff.
Baggott & Ryall, for defendants.

THOMAS, District Judge. The plaintiff resides in the state of Colorado, Baggott resides in the state of New York, and Ryall in the state of New Jersey. Both were served with the summons and complaint in the borough of Manhattan, in the Southern District of New York. The action was removed to this court upon the petition of Ryall and the consent of Baggott. The cause of action is for libel published in the state of New York, signed by defendants under the name of

11. Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298. See Courts, vol. 13, Cent. Dig. § 813; Removal of Causes, vol. 42, Cent. Dig. § 89.