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March 10, 1897. The libelant's first witness, who was the engineer of the Glen, was not examined until November 6, 1899. The next examination of witnesses for the libelant was on February 1, 1900, when the captain and three employés of the Glen and two of her passengers were examined. The last witness for the libelant was a deck hand, who was examined on January 17, 1901. All of these witnesses, except the last, were in the country and in the vicinity of Philadelphia, and could have been subpænaed at any time after the collision. The witnesses for the claimant were examined on December 12, 1901, and on January 16, 1902. The proofs are conflicting, and in many respects show the impossibility of the witnesses to recall distinctly material facts in the case. This is not at all surprising, since the examination of the witnesses covered a period between three years and five and a half years after the collision. I think, however, the weight of the testimony establishes the following facts: The Sylvan Glen left Washington Park, below Philadelphia, about ten and a half o'clock in the evening, bound for the Arch Street Wharf, Philadelphia. She passed up the river, somewhat on the Philadelphia side of the middle of the river. When about opposite the South Street Wharf her pilot sighted the Atlantic City coming out from her wharf at Chestnut street, and turning down the river. After straightening out her
course, the Atlantic City was about in the middle of the river. Each of the vessels showed to the other her green or starboard light. When they were not over a half mile apart, and while each was showing to the other her green light, each of them gave to the other a signal of two whistles, thus indicating the intention of their respective pilots to pass starboard to starboard. Neither of the pilots heard the signal of the other. Notwithstanding this fact, both of the vessels were continued at full speed without the repetition of any signal, and on the apparent assumption that each vessel would continue to show her green light to the other, and that they would pass each other on their starboard sides. After they had reached a position of probably not more than 300 feet apart, the Glen, as all her witnesses admit, suddenly ported her wheel, and sheered across the Atlantic City's bow. Almost instantly it became evident that there was danger of collision, and the engines of both vessels were stopped and reversed, but too late to prevent a collision. The Atlantic City struck the Glen near her port bow. Had the two vessels continued their original courses, they would have passed starboard to starboard without danger of collision. The pilot of the Glen says that the Atlantic City, after first showing her green light to the Glen, gave a signal of one blast, starboarded her course, and then, after the Glen nad starboarded her course, the Atlantic City ported her course, and "chased” the Glen about the river, and thus caused the collision. The weight of evidence satisfies me that the Atlantic City continued her course with a steady wheel, and that the pilot of the Glen is mistaken in his statement that the Atlantic City in any wise altered her course. The pilot of the Glen further says that he ported his wheel and attempted to pass
on the port side of the Atlantic City because of a signal of one blast given to him by the Atlantic City. In this statement the pilot of the Glen is also clearly mistaken. It appears that a steam tug with a car float in tow was crossing the river from Camden to Philadelphia ahead of the Glen. The pilot of the tug says that as he was crossing the river the Atlantic City crossed his bow, and just as the Atlantic City was so doing the Glen gave a blast of one whistle, which he (the pilot of the tug) understood to be for him, and that he responded to it with one blast. By these signals the pilot of the tug understood that the Glen would pass to the stern of the tug. The pilot of the Atlantic City and other witnesses declare that the Atlantic City gave no signal of one blast, and it is quite clear to me that the pilot of the Glen mistook the signal of the tug for the signal of the Atlantic City. The collision occurred a little to the Camden side of the middle of the river, at a point where the river is about 2,000 feet in width.
Such being the material facts of the case, it seems to me that both vessels were at fault. The channel of the river was not so narrow at that point as to require the enforcement of article 21 of the revised international regulations contained in chapter 354 of the Laws of 1885 (23 Stat. 442), which article is as follows:
"In narrow channels every steamship shall when it is safe and practicable. keep to that side of the fairway or mid-channel which lies on the starboard side of such ship."
Rule 3 of the board of supervising inspectors, in force at the date of the collision, is as follows:
"If, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from signals being given or answered erroneously, or from other causes, the pilot so in doubt shall immediately signify the same by giving several short and rapid blasts of the steam whistle; and if the vessels shall have approached within half a mile of each other, both shall be immediately slowed to a speed barely suficient for steerageway until the proper signals are given, answered, and understood, or until the vessels shall have passed each other."
The proper observance of this rule would have prevented any collision. Neither pilot was properly discharging his duty when he continued on his course with unabated speed after having given his signal of two blasts without having received any response from the other vessel, and without having ascertained the intention of the other vessel. Had either vessel repeated its signal, the error of the pilot of the Glen resulting from the signal given by the tugboat would doubtless not have been made.
I find, therefore, that, as there was fault on the part of both vessels, there must be a division of the damages equally between the two vessels. There will be a decree to this effect, with reference to a commissioner to take testimony.
In re COHEN.
(District Court, S. D. Illinois. March 24, 1905.) BANKRUPTCY-POWERS OF COUBT-WRIT OF NE EXEAT.
Bankr. Act July 1, 1898, c. 541, § 2, subd. 15, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3421), which confers on courts of bankruptcy general powers to make such orders and issue such process as may be necessary for the enforcement of the act, in connection with Rev. St. $ 716 [U. S. Comp. St. 1901, p. 580), vests a court of bankruptcy with power to issue a writ in the nature of a writ of ne exeat to restrain a bankrupt within the district where a proper showing of its necessity is made. In Bankruptcy. Petition for a writ in the nature of a writ of ne exeat.
The petition is supported by affidavit showing that respondent is indebted in the sum of $140,000; that on March 6, 1905, he conveyed his real estate to his wife, his son, and his daughter; that in the months of January, February, and March, 1905, he shipped from his place of business merchandise of the value of more than $70,000; that between February 25th and March 9th he collected in cash $56,000, no part of which was paid to any creditor ; and that he is about to leave the district to parts unknown, for the purpose of avoiding the jurisdiction of the court. About two weeks prior to this application respondent was subjected to examination in open court under the provisions of section 9b of the bankruptcy act of July 1, 1898, c. 541, 30 Stat. 549 (U. S. Comp. St. 1901, p. 3426), and at that time stated that he was insolvent; that he had sold merchandise and made collections to about the amounts stated in petitioners' affidavit; that he had been outside of the district, and had returned with the hope of effecting a settlement with his creditors.
Worthington & Reeves, for petitioners.
HUMPHREY, District Judge (after making above statement). This is an application by creditors for an order for a writ in the nature of a writ of ne exeat to restrain the alleged bankrupt from departing the jurisdiction of the court. The respondent had been previously arrested and examined before the court, as provided for in section 9b of the bankrupt act of July 1, 1898, c. 541, 30 Stat. 549 (U. S. Comp. St. 1901, p. 3426], and, the 10-days time limit fixed in section 9b being about to expire, this application is urged under the authority of section 2, subd. 15, of the bankrupt law, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3421), and sections 716, 717, Rev. St. [U. S. Comp. St. 1901, p. 580).
I am of opinion that the facts are amply sufficient to justify the issuance of the writ, if the court has the power. It is objected by respondent that the court is without power to order the writ of ne exeat, except upon satisfactory proof that the respondent is about to depart from the United States; that it would be an unwarranted and arbitrary exercise of power to restrain the respondent from departing out of the jurisdiction of this court, and that no reasonable construction of any federal statute can be held to give such power. Counsel for respondent argue that if the court can confine respondent to the Southern District of Illinois it can confine him to any county thereof, or to any smaller range
of territory, and, if so, to any building, and that this would amount to imprisonment for debt. Unless it be found in the statute, the court has not the power. It is a familiar rule that statutes are to be so construed as fairly and reasonably to carry out the purposes of the legislative body. A study of the bankrupt law shows that the purposes of Congress in its enactment were: First, to allow honest bankrupts to be relieved of their debts by surrendering their property for the benefit of creditors; and, second, to compel dishonest bankrupts to surrender their property for the benefit of creditors. In elaborate detail the act specifies the methods by which the bankrupt may himself carry out the first-named purpose, and also the method by which the creditors applying through the judicial arm of the government may carry out the last-named purpose. Congress contemplated that in many instances skillful men would seek to evade the law, and the act gives the court unusual powers to enforce compliance. Section 2 defines the powers of a court of bankruptcy. In 19 subdivisions it enumerates in detail the necessary judicial powers which the legislative body could anticipate, and, although the court is thus specifically clothed with these numerous powers, subdivision 15 is inserted, in the following words: "Make such orders, issue such process and enter such judgments in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this act." Here is a sweeping general delegation of power, evidently intended to supply any omission occurring in the various other subdivisions of the section so far as Congress could Legally do so. It is clear that Congress intended by this language to give the court every necessary power. It could not give the power to legislate, or to extend the provisions of the act. No power can be exercised which does not clearly reside in the act. But Congress intended to give, and, in my judgment, the above-quoted language does give, every judicial power known to the law which the court may find necessary for the proper enforcement of the bankrupt act. Is the writ here applied for a judicial power known to the law? Certainly the writ of ne exeat is a judicial power known to the law. 'If this application conformed strictly to the provisions of section 717, Rev. St., and asked that the respondent be restrained from departing the United States, counsel say they would not object to it; that it would then be quite within the power of the court. Section 716, Rev. St., is intended to give and does give the courts powers in addition to those specifically defined in 717 and other statutes. It gives the power to issue any necessary writ “agreeable to the usages and principles of law.” The writ provided for in section 717 is of time-honored usage. Originally it was based upon the principle that the law might require a party to be restrained within the king's realm. Surely it is equally in accordance with the principles of law that the court may for proper cause restrain a party within such territory that the hand of the court may without embarrassment be laid upon him when he is wanted. I think this power is clearly given by section 716, Rev. St., as one of the equity powers of a bank
ruptcy court, and, if there could be any doubt on that subject, it is removed by the enactment of section 2, subd. 15, of the bankrupt law. Lewis v. Shainwald (C. C.) 48 Fed. 500; In re Lipke (D. C.) 98 Fed. 970.
The writ will issue, and bond is fixed in the sum of $20,000. Upon failure to give bond respondent will be kept in custody by the marshal at the expense of the petitioners, and he will not be imprisoned.
ROSENBERGER V. HARRIS.
(Circuit Court, W. D. Missouri, W. D. April 24, 1905.)
1. POSTAL SERVICE-FRAUD ORDERS-POSTMASTER GENERAL JURISDICTION.
Under Rev. St. U. S. $ 3929, as amended by Act Cong. Sept. 19, 1890, C. 008, 26 Stat. 466 [U. S. Comp. St. 1901, p. 2686), authorizing the Postmaster General to issue fraud orders against any person conducting a scheme to defraud through the post-office establishment, the Postmaster General, though entitled to pass finally on questions of fact raised in such proceedings, has not exclusive jurisdiction to pass on questions of law.
[Ed. Note.-For cases in point, see vol. 40, Cent Dig. Post Office, g 21.] 2. SAME-STATUTES-INSTRUCTION.
Rev. St. § 3929, as amended by Act Cong. Sept. 19, 1890, c. 908, 26 Stat. 466 (U. S. Comp. St. 1901, p. 2686), authorizes the Postmaster General, on evidence satisfactory to him that any person is engaged in conducting a lottery, gift enterprise, or scheme for distribution of money or any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any other scheme or device for obtaining money or property through the mails by means of false or fraudulent pretenses, etc., to issue a fraud order against him. Held, that such section contemplates three classes of transactions, namely, lotteries and other like games of chance, “confidence games," and schemes which from their very nature, in the light of business experience, are sure to end in financial disaster to their contributors; and does not include an ordinary mail-order liquor business, in which the customers are given a fair commercial equivalent for the price paid, though the seller is guilty of trade puffing and of a false statement in his advertising as to the age of his liquors.
(Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Post Office, 8 55.] On Motion for Preliminary Injunction.
Harkless, Crysler & Histed and J. C. Rosenberger, for complainant.
A. S. Van Valkenberg, U. S. Atty., for defendant.
AMIDON, District Judge (orally). The complainant is now, and has been for about seven years, engaged in the wholesale liquor business at Kansas City, Mo. In the course of that business he has secured a clientage of about 5,000 customers, and his annual sales amount to about $150,000. The greater part of his trade is what is commonly known as mail-order business. Early in the present year inspectors from the Post-Office Department called upon the complainant for a disclosure as to the methods in which he was dealing with the public. He gave them a state