THE RARITAN.
BENEDICT" J. The pleadings in these cases, and the testimony of the master of the Sea Gull, make it entirely clear that the Sea Gull was proceeding up the channel outside of Transfer No.5, which was moving down the channel. 'fhe vessels were not on parallel courses, and the natural navigation under the circumstances would have been for the Sea Gull to pass up in t41'1 tide outside of Transfer No.5, and for Transfer No.5 to keep near the shore coming down. Instead of passing outside the Transfer No.5, the Sea Gull ran across the course of the Transfer No.5, intending to pass up inside of her, and so caused the collision. lIer only justification for this course is that flhe received a signal of one whistle from the Transfer No.5; The case turns, in my opinion, upon the question whether the Transfer No. 5's signal, being the first signal given. be.tween these two, vessels, was a. signal of two whistles or of one. Upon this question of fact the weight of the evidence is against the Sea Gull, and in favor of the,averment on the part of the Transfer No. [) that her first signal was two whistles. This finding is conclusive of the case. The libel of Reed against Transfer No.5 must accordingly be dismissed, and the Long Island Railroad Company must recover in their agaiJ;lst. the propeller Sea GUll; and her libel as against the Transfer No. [) must be dismissed.
THE THE
RARITAN. l DAYTON.
L. P.
MARSELLUS f1. THE RARITAN AND THE MERCHANTS' TRANSP.
DAYTON.
Co.
'V. THE
(District Oourt, E. D. New York. April16,1890.) CoLLISION-BETWEEN STEAMERS-CROSSING COURSES.
The steam-tug L. P. D. was lying in the Hudson river, near the New York piers, headed for the Jersey shore, and with a car-float along-side. The steambarge R., coming up stream, undertook to pass between the L. P. D. and the sh',re, but collided with the float, and was sheered against a canal-boat, in tow of another tug, on her starboard side. The R. claimed that the L. P. D. baoked the car-float into her. The court found that the L. P. D. did not back, but that the R. wrongfully supposed that she would move ahead in time to leave room for the R. to pass, and therefore heW that the R. was in fault for the collision.
In Admiralty. Action for damage by collision. A. B. Stewart, for William Marsellus. 1 Reported
by Edward G. Benedict, Esq·· of the New York hare
192
FEDERA'L REPORTER»
vol. 42.
R. D. Ben6dict:, for the Merchants' Transportation Company and the Raritan. Carpenter & Mosher, for the L. P. Dayton. BENEDICT,J. These actions arose out of a' collision that occurred in the East River in the daylight. The case turns upon the question of fact whether the L. P. Dayton, after she had moved out her float to the stream, backed her float so as to close up the passage through which the Raritan was passing, whereby the Raritan was brought in contaot with the stern of the float. Upon this question of fact the dence fails to show to my' satisfaction that the Dayton backed as is claimed. I incline to the opinion that the cause of the collision was that the Raritan, in taking her con,rse through the. gap between the Dayton and the Willie, assumed that the Dayton would move ahead by the time the Raritan would reach her. When this assumption failed, the Raritan necessarily brought up against the stern of the float, and 80 the damage arose. In the case of Marsellus against the Raritan and Dayton, the libelant must have a decree against the barge Raritan, and the libel against the L. P. Dayton must be dismissed. . . In the case of the transportation company againSt the L. P. Dayton, the libel must be dismissed.
:rIR$): NAT. BANK 11·
193
FIRST NAT.
BANK
OF WELLSTON t1. ARMSTRONG.
(Oircuit Court, S. D. Ohio, W. D. April 12, 1890.)
L B.ums
Checks and drafts sent from one bank to another were indorsed "for collection," and credited "subject to payment," according to the dealings between the banks. Part of them were paid to the receiver of the latter bank after its failure, and the balance were credited to it by the payors. Held, that the amonnt paid the reo ceiver should be accounted for as a trust fund, but the balance as a general debt.
AND BANKING-RllCEIVEU-TRUST
FUND.
2.
SAME-NATIONAL BANKS-ORGANIZATION.
Under Rev. St. U. S. § 5136, providing that no banking association shall transact any business except such as is incidental and necessarily preliminary to its organi. zation, until it has been authorized by the comptroller to commence the business of banking, correspondence between one bank and the person who became the president of a bank afterwards formed cannot constitute an agreement controlling the business between the banks, but may be referred to, in connection with other evidence, to show what was their understanding.
In Equity. John T. Moore and David Davis, for plaintiff. Kittredge &: Wilby and John W. Herron, for defendant. Before JACKSO:S and SAGE, JJ. SAGE, J. This cause was submitted to the court upon an agreed statement of facts, from which it appears that on the 17th day of June, 1887, the complainant mailed at Wellston, Jackson county, Ohio, to the Fidelity National Bank at Cincinnati, checks and sight-drafts on various banks other than the Fidelity to the amount of $2,229.01. Each of said checks and drafts was indorsed as follows: "Pay Fidelity National Bank of Cincinnati, Ohio, or order, for collection for Firat National Bank of Wellston, Ohio. "J. H. SELLERS, Jr., Cashier."
At the same time the complainant so charged the Fidelity Bank with the remittance, which was received by the Fidelity Bank on the 18th of June, and acknowledged by postal, mailed on the evening of that day, as follows: "THE FIDELITY NATIONAL BANK.
"CINCINNATI, June 18, 1887. "In reply to yours of the seventeenth, we credit, subject to payment. $2,229.01. AlIIMI BALDWIN, Cashier."
On the same day credit was given accordingly by the Fidelity Bank to complainant. On the 18th day of June, 1887, the complainant mailed to the Fidelity National Bank the further sum of $3,284.54 in checks and sight-drafts on various banks other than the Fidelity, all 3f whieh were received by the Fidelity on the 20th of June, and receipt thereof acknowledged by postal of that date, signed by the cashier, and stating a credit, "subject to payment," of $3,284.54. It further appears that Buch credit was on that day given by the Fidelity Bank to the complainant. Each of the checks and drafts composing said remittance of $3,284.54 was indorsed by the complainant in the same form as the inv.42F.no.3-13
