der the statute, are not entitled to ape:r diem for the time occupied in traveling to and from the place:of i ,trial/ The excess of the pe:r diem taxed, amounting to the sum of $25, will accordingly be corrected. No direct adjudication {)l1i this question having heretofore been made in this circuit, it may be proper to state that the conclusion above reached is concurred in by Cireuit"J"ustice 'B1tOwN and Associata Circuit Judge TAFT, and is intended to prescribe the rule for the proper taxation of witJaeBB1fees in such cases.
THE J AM]JsBOWEN. THE GEO. E. WEED. TITUS:'!.
MURPHY v. THE GEo.'E. WEED. I ".,j' , . ' .' (mstrlct Oourt, E. D. Pennsylvania. september" 97, 1899.) 1. COLIJIIOW..,-'Otrll'l\(). OJ' POJ;l!r. :'
custom,ot the port of Philade1J)hia$hat on the Delaware river, island, Walnu.t stree't wharfl at ebb tide, vessels lIassing np shall keep and' ve.Sell paslimgdown'shall Keep in regulations prescribeaby theaaillilg rules prescribed by the aot of A vesse18isnaling , ,,' '.
The
.
" .. : ' ,
lklBAME.;..NBGIlIdIIIWB-SIGNJUl.
is going westwlU'd of a, vessel meeting her head on, whioh isall,swered by t4e with a signal that she will .go to the eastward, is not negUgent,,'althougb her proper couree originally was to the eastward.
3. SAME.' '. A vesslllllleetingtwo vessels which &resl1bstantially together, and which must
necessarilY both .pass tothel\ame sideot her. may announce her intended couree to both by 0I/e
. In Admira1$y. Libel byW. H.Titus, master 'of tug Gao. E. Weed, against'· the steamer James Bowen, to recover damages for colli· !lion, and cross libel by AUgustus Murphy, master of the tug James Bowen, against the tugGeo. E. Weed. Decree against the Bowen. . LewiJJ & TiltO'lt' for thb E. . Biddle & Ward and RochRJort & Stanton, for the James Bowen.
Goo.
The suit is for collisioll., The material afternoon,of .september 20, 1891, the Weed, a was. up the, western side afthe Delaware river over) to Walqut wharf ill ,coml?any with another tug, the Ben Hooley. .The latter wan few yards behmd, probably a lengtll. andslightlj'riearer the shore. The}ide,was ebb. When passing Greenwich pietsthe,Bowen wasseencotiling ddwn, about three . ; .', \ , ' ,. ,.,. ';
facts are as follows: .
, BUTLER"DfStrict
lReported by Mark Wilks CoUet,'Esq., of tllePhiladelphia
.. ,:'J;I,E JA¥ES BOWEN·.
511
quarters ofa mile above, on the western eastward of the Weed's course. A later the Ben ,Hooley signaled the Bowen of her purp9Se to pass, we£\tw/lrd, by blowing two whistles, to which the latter replied with two,and immediately the rejoined with an equal num:ber.The Bowen turned slightly eastward, and the Weed and Hooley lllightly westward, Sqon after. and when near the Weed, the Bowen altered her cou.rse ,to westward, and ran into and sank her." At ,this time the weed was nearly, if not quite, across the Hooley's bows and verynea,r her. Othervessl'lls, passing up the river, most of them over eaatward, and none, between the Weed and Bowen after the signals were given. Among the9C:\: vessels was the Goodnow, whilih was over to \he east. It is a well established custom of the locality where thecoHision, oCGurrOO, ,that vessels going up an, ebb, tige, shall keep in shore, on side of the channel; so as to avoid the curreni's force, and those pllSsingdo,wn shall keep well" out in the stream. 'l'his statetnent disagrees, materially, with the respqndent's theory of ,the case, whioh is that the Weed' was shut off from the Bowen's viewllythe Goodnow,lilntH,near at haIld, when she suddenly came from behind the latter's stern and ran westward across the Bowen's bows, rendering ',rhisrtheory is, however, hi direct, irreconcilthe the direct testimopy on the subject. It is denied by all disinterested witnesses who sa:wthe vess!!l (and th{lY are numerous) and is supported only by those in charge of the Bowen, and responsible for her conduct. A vessel did come out from behind the Goodnow, but it is clearly proved that she was not the Weed. The respondent's proctor candidly admits that the weight of direct testimony is against him; but he thinks surrounding circumstances show it to he unreliable. I do not agree with him respecting the effect of these circumstances. It is unnecessary to discuss them, but I may say in passing that while he thinks it virtually impossible to believe that the Bowen turned westward across the Weed's bows, as the libelant's witnesses testify, it seems to me no more difficult of belief than his contention that the Weed ran westward from a safe position behind the Goodnow, across the respondent's bows, thus inviting the destruction whicn overtook her. Admitting the facts to be however, as above found, the respondent still contends that the Weed is alone responsible for the collision because, First, it was her duty under such circumstances to pass the Bowen eastward; second, she was wrongfully on the western side of the channel; and, third, on failing to receive a reply to her whistles it was her duty to reverse and sound danger signals, which she did not. The first point is predicated on the supposition that the vessels were meeting virtually head on. As I have found this was not exactly their position, but granting it was, the fact is unimportant in view of the respondent's signal that she was going eastward, and the Weed's that she was going westward. It is a sufficient answer, I think, to the second point, to say that the Weed was not wrongfully on the western side. The custom respecting this part of the river, justified her. The sailing rules prescribed by the
512
FEDERAL REPORTER,
vol. 52.
d(J885do not apply to the locality, which is'I\'ithin·theport of Phil.1 do not think it ittlportant that the Bowen did not again signal lh answert<> the Weed,-:-:"8.l3 is assumed in the third point; The latter w8S'fullyjustified in treating the previous signal as addressed to her as wellaa to the. lIooley, which was in her company. The Bowen could not these vessels, as the witnesses testify, and ali! is apparent from pass Going eastward of the Hooley, she must also go eastward of' tbe'Weed,'I\'hy then requires second signal that she intended going eastward whetlJhe sound ofthe first had scarcely died away? The Weed one signal was sufficient for both, and Hodley peing BU bstantially and satisfied the requirements of the rule. The proofS show that such signaling conforms to the custom' prevailing under sucp. circumstances. I cannot. 46ubt the respondent's liability. Nor am I able to see that the Weed was guilty of any negligence contributing to the result. She immediatelyt,nrnedwestward, on receiving the Bowen's notification of her purpose to go eastward, and whim the latter changed westward she went or endeavored to do so. It is doubtful whether she could have safely reversed in view of the Hooley's position when the danger became appatept. The 'against the Bowen is sustained. If the parties cannot agree on theamofttlfof damages; a commissioner will be appointed. The . libel again,st the Weed is dismissed.
THURBER V. CECIL NAT. BANK.
513 et al.
THuRBER
et al. v.
CECIL NAT. BA1'4'K
(Circuit Court, D. MU'/"l/1.and. October 15,1892.)
L
EQUITY-PLEADING-JURISDICTION-BILL OF DISCOVERy-QTHER RELIEI!'.
A bill filed as a bill of discovery, but containing a prayer for other specific and general relief, showed that certain goods pledged to complainants were stored in warehouses by their agent. who took stol"age receipts in hIS own name as "agent," lind afterwal"ds pledged them to defendant bank for his own benefit. Held that, whether or not the bill was sufficient as a bill of discovery, the facts alleged made a case cognizable in equity, since they showed that the goods were apparently impressed with a trust, and that there had been a breach of the trust participated in by the bank. The taking of testimony before a master was protracted and desultory because of the sickness and death of counsel, and of difficulty in obtaining the attendance of witnesses, and, by consent of parties, many orders wEl're obtained enlarging the time for taking testimony, and other orders for admitting testimony taken out of time as if orders for enlargement had been made. Held, that such orders could not be considered as an agreement to admit inadmissible testimony thus taken, and that one of the consenting parties could still invoke the rule requiring the suppression of depositions taken on the re-examination of witnesses who had been once examined and cross-examined as to the same mattel"s, unless an order for such reexainination had been first obtained for cause shown. ' An agent, pursuant to the order of his principal, loaned money on a of personal property, taking warehouse receipts therefor in his own name as "agent," wllich he pledged to secure his individual debts to a bank having knowledge of the business relations of the principal and agent and the operations in which they 1.""re engaged. Held, that this knowledge, together with the use of the word .. ag-ent" on the receipts, was sufficient to Jlut' the bank npon inquiry, and it was liable to the principal for the amount realized by it from the sale of the goods so pl"dged.
B.DEPoSITIONS-RE-EXAMINATION OF WITNESS BY (':ONSENT.
8.
PRINCIPAL AND AGENT-MISCONDUCT OF AGENT-RIGHTS OF THIRD PERSONS-NoTICE.
4.
SAME-POWER TO SELL-PLEDGE.
The fact that the agent had power to sell for his principal did not alfect the duty of the bank to make inquiry, for authority to sell does not include authority to pledge. The :Maryland factors' act, (Code, art. 2,) providing that any person intrusted with storekeepers' certificates or other similar documents showing possession may pledge the goods to anybody who is without notice that such person is not the actual owner, does not excuse the bank from liability, for the word "agent" and the circumstances charged it with notice. Md. Code, art. 14, declaring storage receipts to be negotiable instruments in the same manner as bills of lading and promissory notes, does not excuse the blmk from liability; for, when the fiduciary character of the holder is expressed on the face of a negotiable instrument, notice is thereby given to the indorsee that the holder prima facie has no right to pledge. The ap;ent took certain money due his principal, made advances to third parties, and purchased goods thereWith, which he warehoused in his own name as agent, thereafter pledging them to the bank by transfer of the storage receipts. He never intended his principal to have these goods. Held, that the title to such goods was never in the principal, and that the bank was not liable for the amounts advanced on them. The principal heard that A"oods which he suspected might be his were being sold by direction of the bank, but did not notify it of his claim until four months afterwards. During this period the bank had paid over to the agent certain sums remaining after the satisfaction of its loans, and cl'limed that the principal was guilty of laches. It did not appear, however, whether these sums were realized from the goods owned by the principai or from those owned by the agent. Hetd, that there was no presumption that they were the principal's goods, and the delay would therefore not defeat his right of recovery.
5.
SAME:""STORAGE CERTIFICATES-RIGHT TO PLEDGE.
6.
SAME.
7.
SAME-LACRES.
v.52F.no.6-33