182
FEDERAL REPORTER,
vol."59.
ice' not, been performed. The, servic,es" of' the libelants' were, 'therefore, :not of a high order of merit. Furlhermore,it was nearly a year after a decree was. rendered in favor of the respondent in the otuel' smt ,before the libelants brought this action. Such a delay cannot be encouraged. In presenting claims for a salvage service, ,alltlle, parties in interest should come forward promptly, that thecP"Ilrt Illay consider and determine at one time the merit of the claim of each salvor. and the value of the whole service. In view of all the circumstances. a decree will be entered in favor of, the for $100' each.
THE W. B. OOLE. O·CONNELL",. PATE.
(Cltctilt Court of Appeals, Sixth Olrcuit. November 6, 1893.) No. 66. 1. MORTGAdEON VESSET,-RECORD-FAILURE TO INDEX.
A mortgage recorded under Rev. St. §§ 4192-4194, relating to the record of.·mortgages on vessels, Is constructive notice, although not indeXed. Cole, 49 Fed. 587, ,affirmed. TO PURCHASER.
2.
A ptirCha!'ler, of a vessel is charged with notice of a recorded mortgage thereon, executed by a previous owner while holding the record title, even thougb the mortgage may not have been recorded before the bill of sale was l;lywhich the previous owner parted with his title. Such notice puts the pUrchaser on inquiry as to whether the vendee of tlfe previous owner and the subsequent vendees acqUiring title before the mortgage-was recorded did so, either without paying value or without actual D.9tice of tbe IQortgage. If none of sucb vendees paid value without notice, the PJll'chaser takes subject to the mortgage lien. If anyone of such ve:ndees liad no notice of the mortgage and paid value, he took title freed from the mortgage. Such vendee, convey a title freed from the mortgage to alL the )Vorld ,the wrongdoer who, after taking title with notice of the mortgage,fraudulently sold for value to one without notice of the mortgage, and dep1'lved the 'mortgagee of his lien. Against the wrongdoer, when the title revests in him, the lien of the mortgage is revived. '
8. SAME-BONA FIDE PURCHASER.
4. SAME. '
5. SAME.
One whO purchases the second title of the wrongdoer is put upon inquiry by the record of the, mortgage and the recorded fact that his vensale executed after the mortdor once aequIred the title under a bill gage but recorded before it, as to whether his vendor had not actual notice. of t1W mortgage whelllle first took title and fraudulently parted with it toap. innocent It follows that the purchaser can take no better title than'that held by the wrongdoer, and that the intervention 'of bona fide ptirchasers i for value without notice in the chain of title between the first title and' the second title of the wrongdoer cannot aid or better the' title' of the, vendee. Severens, District Judge, dissenting., " An aSSignee of a mortgage on a vessel Is chargeable with constructive notice/of a:prlor re,corded' mortgage,notwithstanding that the assigned mortgage was :given to secure a negotiable: note. ,"'" ',"" , "
6.
/:lAME.
THB W. B. COLE.
183
Appeal from the Circuit Court of the States for the West-ern Division of the Southern District of Ohio. In Admiralty. Libel by Leo Baumgartner against the steamer W. B. Cole for supplies. F. J. O'Connell and C. M. Pate intervened as claimants under mortgages held by each, as to which the district court adjudged the lien of Pate's mortgage superior to that of O'Connell, and this decree, on appeal by O'Connell, WlliS affirmed by the circuit court. 49 Fed. 587. O'Connell again appeals. Mnrmed. Statement by TAFT, Circuit Judge: This case was begun by a libel tiled by Leo Baumgartner against the steam-ar W. B. Cole in admiralty in thE' district court for· thl' somhern district of Ohio. Baumgartner was the owner of a supply claim against the steamer, and libeled her for Its satisfaction. 'rhe steamer was ordered sold by the decree of the district court, and the fund brought Into court for distribution between Baumgartner and other intervening claimants. The question presented in this appeal was one of priority between two mortgagl' c1aimants,-Pate, the appellee, and O'Connell, the appellant. The fund remaining in the court after the payment of prior claims· was not sufficient to satisfy both mortgages. The facts were as follows: C. M. Pate and P. B. Bradley were, in the year 1889, joint and equal owners of the steamer W. B. Cole, engaged in navigation on the OhIo river. In :May of that year, Pate sold his half interest in the boat to John Eshman, Jr., for $1,500, of which $500 was paid in cash, and the remainder in two notes of Eshman for $500 each, secured by a mortgage on the one-half interest in the boat sold. Bradley, the other owner of the boat, witnessed the mortgage, and went with Pate to the office of the collector of the port at Cincinnati, where Pate left the mortgage for record on the day of its execution. The clerk of the collector, who received the mortgage, did not indorse upon it the date of its receipt, and the mortgage was mislaid, and not recorded during the term of the then collector. The succeeding collector found the mortgage some time after September, 1889, but for reasons not appearing in the record, it was not recorded until March 6, 1890. In January, 1890, Pate made inquiry at the office of the eollector, and was tol<1 that it had not been recorded, The mortgage was not indexed in accordance with the statute before March 30, 1890. Eshman sold his Iialf of the boat to Bradley, and Bradley paid Pate $200 on the $1,000 dUf! under the Eshman mortgage. January 17, 1890, Bradley sold the entire interest in the boat to the Moscow & Cincinnati Towboat Company for $3,000, the sale being evidenced by a bill of sale properly executed and recorded upon the same day. The tOWboat company, by the bill of sale dated March 7, and recorded March8, 1890, sold the boat to W. H. Wright for $3,000. At the same time, Wright executed and delivered to Bradley a note for 30 days for $1,300, secured by mortgage on the boat. This mortgage was left for record March 8, 1890, and was duly recorded in the collector's office. On :March 28, 1890, Bradley sold and assigned the note and mortgage for value to F. J. O'Connell, the appellant. O'Connell made no inquiry at the collector's office to find out whether there was any prior recorded mortgage upon the boat.
T. N. Ross and Miner & Carroll, for appellant. Philip Roettinger, for appellee. Before TAFT. Circuit and BARR and SEVEREN8, District Judges. TAFT, Cil'Cuit Judge, (after stating the facts.) The question whether a mortgage on a ship delivered to the collector of a port to be recorded, as provided by sections 4192--4194, Rev. St. D. S., is constructive notice to subsequent purchasers if, through the negligence of the collector, it is not actually reoorded, was much dis-
184
FEDERAL
vol. 59.
cusse<l in the briefs and arguments of counsel. It is by no means free from difficulty, and, as. the decree of the court below can be satisfactorily affirmed on another ground, we express no opinion thereon. ' The subject-matter of this controversy is the one-half interest in the steamboat W. B. Cole, which Pate held in May, 1889. He held this,a.s he had a right to do, independent of Bradley, and could mortgage it and grant it without Bradley's consent. We may therefore dismiss the other half of the boat from our consideration, and regard the case as if Pate had owned the entire boat. Pate:.sold the boat to Eshman, May 8, 1889. Eshman mort· gaged to Pate on the same day. Eshman sold to Bradley some'time thereafter. Bradley sold to the Moscow & Cincinnl;lti Towboat Company, January 17, 1890. Pate's mortgage from, Eshman was recorded March 6,.1890. The towboat company sold to Wright, March 7, 1890, and the bill of sale was recorded March 8, 1890. Upon the same day, Wright gave his note at 30 days and mortgage to Bradley, and the mortgage was duly recorded. Bradley sold this note, and mortgage.to O/Connell, March 28, 1890, before the note had fallen due. Bradley had notice of the Pate mortgage when he bought from Eshman. It does not appear that the Moscow & Obici'tlil:atiTowboat Company had any notice of that mortgage When bought from Bradley,an(J at that time the mortgage was not recorded. It is clear that the Moscow & Cincinnati Towboat· Company was a bOna fide purchaser of the boat from Bradley, and, as its title was recorded before the Pate mortgage was recoI'ded, it did not ,take subject to the Pate It had neither ,actual nor CQnstructive notice of the existence of that lien, Whether Wright had notice of the lienor not, he took all the right in the boat which the Moscow & Cincinnati Towboat Company, co,u,l<i cc;mvey, and therefore he also held his, title to the boat free fronl:tq.ePate mortga,ge. WhenWJJight conveyed to Bradley, the title to the boat as a mortgagee revested in him Who had been guilty of the original fraud in selling a boat, which he knew to be mortgaged, free from that mortgage. "As against him, Pate's equity was revived, and Bradley held the mortgage on the boat subject and juniqr to'the Pate mortgage. ,Story, Eq. Jur. § 410; Bisp. Eq. par. 265; Per!'Y., Trusts, 222; Daniel, Neg. Inst. (3d Ed.) § 805; Church v. Ruland, 64 ,Pa. St. 432; Ashton's Appeal, 73 PaSt. 153; Sawyer v. Wiswell, 9 Allen, 39; Kost v. ':aender, 25 Mich. 516; Kennedy v. Daly, ,I Schoales & L. 355,379. The question now is whether O'Copnell, who purchased from Bradley for,valfie; got any better right, than Bradley had in the mortgage which Wright had executed to him. O'Connell had constructive notice' of the Pate mortgage, because when O'Connell bought, March 8, 1890, the Pate mortgage had been recorded. It had not been indexed, but it is generally held in all the authorities that theitailute to index'a mortgage" if the mortgage is recorded, does not destroythepriori'ty acquired under the law by recording the mortgage. '. The indexi,ngisfor the benefit of the subsequent
THE W. B. COLE.
185
purchasers, and a failure to properly index is a violation of the duty of the recording officer, owing, not to the person tendering the instrument for record, but to the subseque;nt purchasers, who are interested in discovering wha:t the instrument contains. Green v. Garrington, 16 Ohio St. 548; Jones, Mortg. § 553. If O'Connell had constructive notice of the mortgage from Eshman to Pate, he was ·bound to know that, if Bradley had actual notice of the Pate mortgage when he bought· from Eshman, the statute would not protect Bradley from the Pate mortgage. He was further bound to know that if Bradley, with actual notice of the Pate mortgage, had sold the boat to the towboat company free from the mortgage, the subsequent revesting of the title in would revive the equity which Pate held against Bradley when he first purchased the boat from Eshman, and would give Pate's mortgage priority over Bradley's. It therefore follows that O'Connell's position in receiving a mortgage from Bradley is exactly the same as if neither the towboat company nor Wright had intervened in the chain of title, for he was bound to know that he could get from Bradley nothing more than a title affected by the same equity in favor of the Pate mortgage with which Bradley's original title was . affected. It is said, however, that O'Connell was not charged with constructive notice of the Pate mortgage, because the mortgage was out of the chain of title. The chain of title disclosed by the record showed a conveyance from Pate to Eshman, from Eshman to Bradley, from Bradley.to the towboat company, frO'IU the towboat company to Wright, and from Wright to Bradley. Eshman was in the chain of title. The mortgage, which was recorded, bore date at the time when Eshman was shown to be the owner of the boat, though recorded at a later date, and after Eshman had parted with his title. The authorities are uniform in holding that a subsequent purchaser is charged with notice of whatever appears in the chain of title. The mortgage of Eshman to Pate waS' in the chain of title, because it was executed by one who owned the boat, while he owned it. The fact that it was recorded at a time after he had parted with the possession of the boat does not take it out of the chain of title. In Flynt v. Arnold, 2 Mete. (Mass.) 619, 622, Chief Justice Shaw says, in discussing the effect of the recording acts: "Suppose, for instance, A. conveys to B., who does not immediately record his deed. A. then conveys to C., who has notice of the prior unregistered deed to B. C.'s deed, though first recorded, will be postponed to the prior deed to B. Then suppose B. puts his deed on record, and afterwards C. conveys to D. If the above views are correct, D. could not hold against B.-not in right of C., because, in consequence of actual knowledge of the prior deed, C. had but a voidable title; and not in his own right, because, before he took his deed, B.'s deed was on record, and was constructive notice to him of the prior conveyance to B. from A., under whom his title is derived."
Again,' the learned chief justice said: "The practical consequences resulting from this view ot the registry acts would seem to be these: If a prior conveyance is recorded at any time, however late, before a subsequent conveyance is made by the same grailtor to
FEDERAL REPORTER, ft
ot such
the
ot deeills conclusive legal notice to .the ,conveyance." ' , ,
ThEi" slttlle doctrine is held in l\fahoney,v. Middleton, 41 Cal. 41; Englisht.' Waplel;l,,13 Iowa, 57; Van Re:psselaer v. Clark, 17 Wend. 34 Mich. 477; Ja,ckson v. Post, 15 Wend. 25; 588;. v.Pierce,30 Wis. 473. :In .last case Chief JU'stice Dixon delivered a very interesting o:piniq#;m ,. which he explained the reason' for the rule. He says, ' , on pagE!, "Now,'tljbereal!lOn why the purchaser trom 0" in the case first above supposed,1Vho; buys atter the ot the prior deed to B. from A., also the grantor9f 0., 'Is bound to take notice of R's deed, or of the. fact that the true title Is' j>r mllY be in B., Is that such purchaser, in looking upon the statute, seesthatB:'lrprior and paramount title at common law is not to be divested, or 'his deed avotded,ex:ceptupon the happening of three distinct events Qr ' contingeqcles, the absence of either of which wUlsave the title of B., or prove fatal to t1;lat. j:llaimed by C., or which may be acquIred by a purchaser from hIm. ThOse1eivents or contingencies are-First, good faith in C., i. e. the purchase by hlill,' 'WIthout notice of the prevIous conveyance to B.; second, the payment'of,a valuable consideration by C.; and third, the first recording of C.'s dee(!. ;XlJ,epurchaser from C., looking upon the recprd. sces-First, the prior conveyance from A. to B.; and, second, the first recording of C.'s deed. Of thelle ,twp facts,the record Informs him, but, of the other two facts reqUisite under. tl1estattite to constitute valld title In C. as against the prior purchaser, B., the record glveshlm· no information. For knowledge of the other two fact$, namely, the good faith of C. and valuable consideration paid by him, the purclJ,aser from. or, ,anyone claiming title under, C., as against B. or his grantees, must Inquire' elsewhere than by the record, and Is bound at theper11 of his title, or of any right which can be granted by or claimed under C., to ascertain the existence of those facts. · · · The operation of the statute, so ,far as it goes,in favor of ·first purchaser, is not llmited, and does not stop or cease, with the first, second, or third, or any specified number Of first recorded .$ubsequent conveyances to sUbseq,uent purchasers, or one such purchaser to another, and consequently the right of the first purchaser to save himself by the recording of his deed continues, or may continue, after any number of subsequent conveyances have been recorded; for If the facts Wit that such subsequent purchasers, one and all, bought, either not in good faith, or not' for a valuable cOnsideration, then his prior deed will hold, and the tltleconveyed by it be preferred."
It is obvious from the foregoing authorities that the proper construction of the recording acts charges every person taking title with all conveyances or mortgages made by any one the chain of title while he holds title, whether the recording of such conveyances occurs then or not. If, upon the record, a prior conveyance seems to be defeated by a subsequent one through delay in recordtaking title must inquire as to the facts which ing, then the might defeat the statutory effect of such prior. record. But it is said that because O'Connell, in an examination of the record and an investigation dehors the record, would. have discovered the fact. that the towboat company had acquired a good title as a. bona fide purchaser from Bradley, he cannot be charged with notice as to the condition of the, tjtle on the record previous to that conveyance., This view, in our opinion, cannot be sustained. A purchaser is chal'ged with notice of his chain of title, whether the grantees therein are bona fide purchasers or not. Whether such constructive
187
notice will defeat ·his title is quite another question. O'Connell could not, by an examination of the record, know that the towboat company was a bona fide purchaser, without knowing that it acquired title from Bradley, and therefore that Bradley was in the chain of title. O'Connell also knew that Bradley was his immediate assignor, and that equities against Bradley, existing when he first acquired the title, would revive against him as a mortgagee. Therefore, he was put upon inquiry in regard to Bradley's bona fides in reference to conveyances and mortgages appearing upon the record, recorded subsequently to Bradley's first title, but executed prior thereto. In other words, O'Connell's position is not affected by the question whether the towboat company and Wright had an indefeasible title, by the reason of a want on their part of actual or constructive notice, because the revesting of the title in Bradley eliminates their indefeasible title from further consideration, and makes the situation exactly as it was when Bradley first held the title. O'Connell had notice that Bradley had taken the title from Eshman. He knew that he was buying his mortgage from Bradley. He ran the risk, therefore, of Bradley's having actual notice of the Pate mortgage when he acquired title. Bradley, it is admitted, did have actual notice of the Pate mortgage. Therefore, the constructive notice which O'Connell received of the Pate mortgage put him on inquiry as to p.ow Bradley's title was, affected by it. As that title was subject to the Pate mortgage, O'Connell can take nothing more. But it is argued that O'Connell is protected in this case by the negotiable character of the note which he received from Bradley, to which he acquired title before maturity. It is said that, as the mortgage was given to secure the note, it was an incident to the note, and went into the hands of O'Connell as free from original equities as the note. There is no doubt that under the commercial law, as administered in the federal courts, a mortgage given to se· cure a negotiable instrument passes to a bona fide purchaser as free from original equities as the whose payment it secures. Carpenter v. Longan, 16 Wall. 271. . But how does this principle affect the case at bar? 'l'he original equities, which are barred by the transfer of the securing mortgage, are equities of which the assignee has neither act:ual nor constructive notice. O'Connell had constructive notice from the record of Pate's possible equity against Bradley, and, when he bought from Bradley, he therefore took at his peril. Wright had a good title, and could convey one. When Bradley took title, however, it became tainted, by his previous relation to the title. O'Connell, by reason of the negotiable character of the note, took Bradley's title free from any equitable defense by Wright against the mortgage not disclosed by the record; but whatever infirmity there was in Bradley's title, apparent, or suggested by the record of the collector's office, O'Connell was bound to know at his peril. It seems manifest that the doctrine of negotiability does not do away with the effect of the recording acts. Daniel, Neg. Inst. (2d Ed.) § 834bj Linville v.
188
I'EDERAL REPORTER,
Savage; 58 Mo. 248; Logan v. Smith,62:Mo. 450; Sims v. Hammond, 83 Iowa, ,368; English v. Waples, 13 Iowa, 57. Finally, it is argued that in order to give Wright, the purchaser frotn the towboat company, the full benefit of the title of the towboat company, it is necessary that he ahould be able to dispose of that good title to any ,one,and that as O'Connell held the mortgage, as from . Wright, by Bradley's assignment,he took the title which Wrightwas able to Wright was able to convey a good title toeverYQne in tl,le world but Bradley. Bisp. Eq. par. 265. As agaw.st ;Bradley, Pate's, equities revived. O'Connell could not get any better title to the boat by the mortgage than Bradley had, if he knew ,Bradley's title was defective. We have shown that he was charged with notice of a defect in Bradley's title, and notice is equivalent to knowledge. The decree of the circuit court affirming the decree of the district court j>ate's mortgage prior in right to that of O'Connell upon the ,one-half of the boat covered by the Pate mortgage is ,affirmed, the costs of the appellant. : SEti:gENs, District Judge, (dissenting.) I regret my inability to concui' in the proposed disposition of this case. In my opinion, the result is wrong, and the reasoning upon which the result is reached 'is not fqupded upon sound principle or warranted by authority. I Upon a careful examination of all the case,s cited, the text-books referred to, aJld the cases cited by them, and other authorities not referred 1;(), I cannot see that they sustain the positions assumed in regard.tdthis case. In the case of Flynt v. Arnold, quoted from 2 Mete. (Mass.) 619, 622, the illustration entirely fails to support the proposition for which it is cited, if there be inserted in the case there Supposed what was the fact here, namely, that C. conveys to D. beforeB. puts his deed on record. That changes entirely the whole line of consequences. The same observation is true of the discussitlnin Fallas v. Pierce, 30 Wis. 443. The application of the remarks in that case to the facts In this as ground for the conclusion Sdught to be deduced ignores the controlling fact that the towboat company, by its purchase, became the absolute owner of the boat,a:nd the lien was lost. Having ascertained this from an inspection of the registry, and on inquiry into the fact of the payment of valuable consideration in good faitbby the towboat com· pany, the purchaser could take and stand on that title, and he was not bound to look further, for he would not be affected by the defectivestatus of a prior party, even if he knew of it. The recording of a conveyance after the grantee has lost all title by reason of the prior record of the deed of a bona fide purchaser is not constructive notice to a subsequent purchaser from that bona fide purchaser of anything except that, whatever his pretensions, they have1>een cut off. Surely, such subsequent purchaser is not thereby bound to pursue an inquiry which would end in an immaterial discovery. Then, secondly, assuming that Wright stood in the place of absolute owner of the property, he had the privileges which belong to
189
that character, one of wl!.ich was to convey it to anybody in security for his obligation" and thus give his note commercial value. His right to do this was not restricted to the privilege of mortgaging it to such persons as might not be affected with equities with which he had nothing to do, any more than any bona fide holder is prevented from communicating his rights to another, even though the latter may be the only one, or is one of a few, who has or have notice of equities which are obsolete as to the bona fide holder. Thirdly. But it is said that BradleIl on becoming mortgagee, was charged with an equity in favor of Pate in his (Bradley's) reo lation to the boat, because Bradley sold the boat to the towboat company without disclosing Pate's lien, and thus cut the latter out. It is held by the majority of the court that it was fraudulent in Bradley not to inform the purchaser of the unrecorded mortgage. Taking this to be so, for the purpose of the discussion, it raised an equity which was collateral to the title. The lien had become dissociated from the title, and the equity survived only by reason of Bradley's demerit. He was not charged with it simply, or at all, because he had notice of the equity of Pate when he took the mortgage from Wright, or because of anything in the recording laws. It was a general equity attaching to him personally. The lien had been detached, but Bradley had come into such a situation that equity acted upon his conscience. That is the theory of the equitable doctrine of the revival of the trust. Lastly. The mortgage is a mere incident of the note given by Wright. It is not to be treated as an independent thing. It is urged that O'Connell knew he was buying the mortgage from Bradley. This seems, to me to indicate a misapprehension. What he knew was that he was buying the note of which the mortgage was the security, given by Wright to communicate value to the note, and thus enable Wright to get money on his note. It is also said that "the original equities which are barred by the transfer of the securing mortgage in such a case are the equities between the mortgagor and mortgagee," as if equities of that kind were the only equities which are barred. This ignores the relation of the mortgage to the note. It is impossible to hold that the rule above stated is the one (as thus limited) which applies to the transfer of negotiable paper before due. In such case the transfer cuts off all equities of third persons. To illustrate, if Bradley had taken the note as a mere agent or trustee for another, his negotiation of the note to a bona fide holder would give a perfect title to the latter, discharged of such equities as attached to him, and' the mortgage would go with it, even thongh he did not transfer it at all. What Wright did was not merely to promise to pay Bradley the note, but it was also a direct promise to pay it to the indorsee, and the mortgage secured this promise. The indorsee did not take an assignment from Bradley of Wright's promise to pay the note to Bradley. He passed by Bradley, and is independent of his merits. The security passed and inured in the same way.
:1:90
i REPORTER,
\Tol. 59. . _,
Says Jones on ChatteIfMortgages,(3dEd. § 503:)
"It the debt be in the t6tm 'of. a negotiable' promissory note, the' assignee by -Indorsement takes the fJllOl'tgage as he takes the note, tree tromliny Gil-
which existed In faV'P,l' <ff ,third persons .while It was held by· the mort·' .
And this, in efl'ect,is what. was supposed to have been decided inOarpenter v. Longan, 16>Wall. 271. See Kenicott v. Supervisors, Id., at top of page 469;iand Sawyer v. Prickett, 19 Wall., near boi· tom of page 166; Sweet, v; Stark, 31 Fed. 858. IfO'Oonnell were to ha"te foreclosed his mortgage, the purchaser a;ttlw Would acquire the title which Wright had when he gave the mortgage; otherwise,evet'yindorsee of negotiable paper se· cured by mortgage is at the peril of any intervening equities which may haveat1:ached to pallties while it Was in their hands,-a result utterly destructive of the object of the rule which ties the security to the note, and 'attributes to the former the color and character of the latter. PENNSYLVANIA R. CO. v.CENTRAL R. CO. OF NEW JERSEY.
(District Court, 1.
S.
D. New York.
June 24, 1892.)
NAVIGABLE WATERs-OnSTRI{CTION BvRAIl.ROAD DRAWBRIDGE-SIGNALS.
J;'roprietors of drawbridges,.Qver navigable streams are bound to use reasoDablemeans to avoid accidents, and not to obstruct navigation, including the use of avallabiesignals to avoid misunderstanding and collision, t):lough not expressly required by statute.
A tug with a tow on a hawser in going up the channel of Newark Bay, onapproachiug the defendant's drawbridge, and when at a reasonable therefrom, gave the usual signal of three whistles, shmving her wish to go through the draw. No answer was received, and the whistles were rePeated several times. 'When within 1,500 or 2,000 feet, or nearer, a raUrpad freight train was seen approaching the draw, some two miles distant, the draw was not Qvened. No answering signals were given; . and none were cu.stomarilygiven on that bridge. After the railroad train had passEld, the drawbridge was seen opening,-and a green light set on the draw, showing that fact; The tug had maneuvered for delay as well as she could in the mean time, and when the draw was opened proceeded using all reasoullble skill; but through thedeiay in answering through her signllis and the crosS set of the tide, the tow came. in contact with the pier Ou one side of the draw, and was injured. HelrA that the defendant wllsanswerable for negligence in giving no answering signals, and for an unreasonable preference given to the railroad train, thereby un· reasonably obstructing and embarrassing the navigation of the tug and tow.
SAME-'-PRltFEnENCE TO RAILROAD 'TRAINS.
In Admiralty. Libel by the Pennsylvania Railroad Company against the Central Railroad Company of New Jersey to recover damages for collision of a scow with a bridge abutment. Decree for libelant; Robinson; Bright, Biddle & Ward, for libelant. De Forest & Weeks, for respondent. BROWN, District Judge. On the 15th of November, 1891, at about 5:30 A. M., the scow Senate, with a cargo of about 160 tons of brick, while proceeding up. Newark bay in tow on a hawser from