being necessary for the trustee or bondholders to first resort to the security given for the bonds. No question was presented as to whether the trustee or bondholders were the proper parties to prosecute the claim. The question presented was whether it was necessary to first resort to the collateral security. In the opinion there delivered, the writer quoted from the opinion of the special master in Penn. Steel Co. v. N. Y. City Ry. Co., supra, where the special master said: "The claimant trustee under the two Metropolitan mortgages have an unquestionable right under the authorities, federal and state, to prove claims to the extent of the face value of bonds secured, against general assets of the insolvent Metropolitan Company, subject only to the limitation that the amount of the deficiency decrees to be hereafter entered will suggest a maximum amount to be paid on the claims allowed." There the master was considering two mortgages which contained provisions other than those in the case at bar, one of which contained a covenant that the railway company would pay to the trustee, for the benefit of the holders of the bonds and coupons that may be secured and then outstanding, the whole sum due and payable on all such bonds and coupons for the principal or interest, or both. And, in case the railway company failed to pay the sum, "the trustee in its own name, and as trustee of an express trust, shall be entitled to recover judgment against the railway company for the whole amount so due and unpaid," and the master held that, by virtue of such express authority, the other claimant was authorized to file and approve the claims on behalf of all the owners and holders of bonds as trustees of the express trust. The master's report was approved by the District Judge. There the trustee was a payee of the bonds, and by virtue of the express authority conferred by the mortgage, was duly authorized to file and approve the claim on behalf of the owners and holders of the bonds. [2] The cases are distinguishable. Here the appellee is not the payee named in the notes, nor is it made such a creditor under the terms of the mortgage. It has been judicially recognized that a provable debt under a deed of trust is represented by the bonds secured thereby, and, in the absence of authority granted to the trustee by the terms of the mortgage, the right to file a claim resides in the note or bond holders only. United States Trust Co. v. Gordon, 216 F. 929, 133 C. C. A. 117; Mackay v. Randolph Macon Coal Co., 178 F. 881, 102 C. C. A. 115; In re U. S. Leatheroid & Rubber Co. (D. C.) 285 F. 884. Under the mortgage here considered, since the trustee is neither the holder nor the payee of the note, it could not maintain an action at law for the collection of any of the notes. Its authority to proceed under the mortgage to collect the principal and interest of the bonds has reference to the collection of or the enforcement of the security. [3-5] The right to maintain a suit is a matter of law, and not subject to be controlled by private conventions of the parties. Suits must be in the name of the real parties in interest. The only exception to this rule is where a trustee of an express trust may maintain an action in his own name on behalf of the beneficiaries. There the trustee must be the holder of the property or obligation out of which the action arises, or a person with whom or in whose name a contract is made for the benefit of another may maintain an action upon the contract. A trustee under a mortgage comes within this exception as to the security, but not as to the bonds or notes, for they are not payable to the trustee. Mackay v. Randolph Macon Coal Co., supra. The mere fact that a trustee holds legal title to security does not make it in equity a creditor with respect to the debt itself. United States Trust Co. v. Gordon, 216 F. 929, 133 C. C. A. 117. A distinction is to be noted between allowing a deficiency judgment in foreclosure proceedings and filing a claim as a creditor in either equity or bankruptcy proceedings. Where there is a mere foreclosure, affecting a portion only of the corporation's property, it is advisable, in order to avoid multiplicity of suits arising out of the deficiency judgment and number of note holders, that the trustee collect and distribute pro rata the entire deficiency. But, where an equity receivership or bankruptcy intervenes, there is no longer a reason for allowing the trustee to act for the benefit of the note holders. Particularly is this true where there has been no foreclosure, and where the claim is based solely upon the obligation represented by the notes, which were not owned or held by the trustee, other than the rights conferred by the terms of the deed of trust. Order reversed. 16 F. (2d) 25 THE CLARENCE P. HOWLAND. PAUL et al. v. HOWLAND TOWING & TRANSPORTATION CO. (Circuit Court of Appeals, Second Circuit. December 6, 1926.) No. 107. 1. Towage 15(2)-Collision of tow with pier, due to tug's failure to check headway, requires explanation by tug to rebut presumption of negligence. Collision of tow with pier, due to failure of tug to check headway as vessels approached pier, requires explanation by tug to rebut presumption of its negligence. 2. Towage 15(2)-Evidence held not to rebut presumption of tug's negligence arising from collision of tow with pier. Evidence held not to rebut presumption of tug's negligence arising from collision of tow with pier, but showed tug's negligence in approaching too close before attempting to check headway. Appeal from the District Court of the United States for the Eastern District of New York. Libel by Charles C. Paul and another against the steam tug Clarence P. Howland, claimed by the Howland Towing & Transportation Company. Libel dismissed, and libelants appeal. Reversed, with directions. This is an appeal from a decree in admiralty of the District Court for the Eastern District of New York, which dismissed the libel. MacFarland, Taylor & Costello, of New York City (Willard U. Taylor and Alfred H. Strickland, both of New York City, of counsel), for appellants. Foley & Martin, of New York City (William J. Martin, of New York City, of counsel), for appellee. Before MANTON and MACK, Circuit Judges, and AUGUSTUS N. HAND, District Judge. AUGUSTUS N. HAND, District Judge. Claimant's tug, Clarence P. Howland, had in tow libelants' four-masted schooner Charles Struven. The tug was 85 feet long and the schooner 170 feet long, carrying a cargo of 575,000 feet of lumber. The tug was on the port after quarter of the schooner, and had brought her to a point near the foot of Van Brunt Street, Brooklyn, with the purpose of placing Her starboard side to the pier at the Beard Stores. When the schooner was at a distance from the pier variously estimated by the witnesses at from 25 to 175 feet, the master of the tug, who was at the time on the schooner directing operations, gave a sig nal to his mate to back. Instead of slowing down, the schooner and tug continued their headway until the bowsprit of the schooner crashed through the door of a warehouse on the pier. This collision broke the jibboom and parted its guys. The cause of the failure of the tug to check the headway of the schooner and to moor her safely is the matter in dispute in this case. The claimant attributed the collision to a stick of driftwood, which was thought to have jammed the propeller. No one pretended to have seen such a stick in the wheel, and Brooks, the engineer of the tug, who saw her in dry dock three or four months after the event, and examined the propeller, found it all right. The master of the tug said there was "quite a lot of driftwood around at that time," but he testified that he was out on the bow of the schooner and 125 feet from the Howland, when the wheel was said to have failed to work (Record, folio 107), and he admitted that, in answer to the inquiry of the mate of the schooner as to what seemed to be the trouble, he had replied: "I really do not know; something went wrong." Both the captain and mate of the schooner testified that the tugmaster said to them that his signal must have been misunderstood (folios 39 and 66); but they agreed that they heard nothing at the time about the fouling of the propeller. The engineer, Brooks, did say that after a few revolutions in reverse the tug "fetched upon something," which he could feel in the engine room; that, when he found he could not back, he "worked her backward and forward, trying to get her to go back, and finally got her backing." He testified that the water about the stern was full of driftwood, and his explanation of the alleged jamming of the propeller was that the engine "could not stop any other way" (folio 136). He was asked, however (folio 151): "Q. Now, you stated you thought that the propeller got jammed. You do not know whether it got jammed? A. Well, I pretty near know." Martin, the mate on the Howland, testified that he gave the order for backing, and "she stopped, and the engineer started her ahead, and started to go back again; she stopped. She fetched up then. Q. That is all you know about it? A. That is all." (Folio 186.) He said nothing about seeing driftwood. The witness Charles P. Smith, a man who meets vessels that come into the Erie Basin and makes fast the lines to the pier, testified that he was on the bulkhead of the Van On further cross-examination, he said that he had first talked to the captain about the driftwood four or five months before, and farther along stated that the captain had told him six months before that the case was coming up, and asked him if he remembered it. Smith said: "Yes, give me a little idea, and I might explain it.' Three days he came to me with the same statement, and I said, 'Yes, that is about the same." " ably calls for an explanation. It was held in Kiernan v. Lake Champlain Transportation Co. (C. C. A.) 273 F. 499, following The W. G. Mason, 142 F. 913, 74 C. C. A. 83, that where a misfortune occurs without any fault on the part of the tow, under circumstances in which, if proper care is exercised in performing a similar service, such misfortune does not ordinarily occur there is a presumption of negligence. In other words, the situation calls for an explanation, and there is a duty on the part of the tug to offer evidence to meet the presumption. There was no testimony adduced of a single witness who saw a stick of driftwood in the propeller, or who found the propeller injured, as it would have been likely to be, if a stick had been caught in it. [2] The claimant has merely shown by some interested witnesses, one of whom, Smith, was evidently untrustworthy, that there was driftwood around the place, and that the propeller suddenly fetched up, and, after being worked backward and forward a few Such testimony as that of the witness times, resumed normal operation. There is Smith is patently unreliable, and he is the no direct evidence of the presence of a stick only witness, except the master, mate, and en- of driftwood in the propeller, and we do not gineer of the tug, whose testimony tended in regard the testimony of the interested witany way to substantiate the theory of a nesses as of sufficient weight to justify what jammed propeller. The last three persons is at best only claimant's theory of the cause were manifestly interested witnesses. The of the collision. The only witness for the master of the tug could not possibly have claimant who could personally have known seen her propeller when the supposed jam- anything about the jamming of the propeller ming occurred, for he was far away at the was the engineer, who, in answer to the quesbow of the schooner, and neither he, nor the tion, "You do not know whether it got mate, nor the engineer, claims to have seen jammed ?" had no more to say than, “Well, I any stick of driftwood in the propeller pretty near know." blades, nor to have discovered any injury to them caused by working the propeller backward and forward to throw out the hypothetical obstruction. The mate, Martin, said that he judged that the schooner was only 25 feet from the dock when the first order to reverse was given. (Folio 195.) Brooks, the engineer, said that, when he found his propeller jammed, he was very close to the tug, not over 50 feet away, but that he was really too excited to say. (Folio 148.) Taylor, the mate of the schooner, estimated the distance of the schooner from the dock at the time the order was given at 100 feet, and the master of the tug at 175 feet. Her rate of speed was estimated by Taylor at 3 or 4 miles an hour, but by her master at 11⁄2 miles an hour. Even if we average the various estimates of distance, no check was given to her headway of at least 11⁄2 miles an hour until she was less than 100 feet from the pier. But, irrespective of the failure of the claimant to offer any credible explanation of the collision consistent with the exercise of due care on the part of the tug, we are of the opinion that there is affirmative evidence that, even if a stick of driftwood did cause the propeller to jam for a very short time, the proximate cause of the accident was due to a failure sooner to begin to check the headway of the schooner. If the place was as full of driftwood as the master of the Howland said, he should have proceeded with particular caution, with that fact in view. He testified that he had had experience in cases where tugs picked up débris in the East and North Rivers: "Q. When you picked it up, have you stopped? A. Yes; if we cannot get it out. "Q. Are there times you do not have to stop? A. Yes; it is an ordinary thing. It might happen ten times a day." Now, if this testimony is to be credited, [1] Such a collision as occurred unquestion the master of the Howland, who was direct 16 F. (2d) 27 ing the operations, was aware of the danger,. 4. Judgment 272-When Judgment is awarded after expiration of term, it should be enand brought the schooner within a short distered as of last day of term (District Court tance of the pier at a speed too great to conrule 22). trol her when docking, if any interference with his propeller by driftwood should occur. We are of the opinion that the tug should have begun to check the headway of the schooner more than she did before coming in close proximity to the dock. From the above it appears that the claimant has not met the presumption of fault arising out of the collision, which would not ordinarily have happened, if proper care had been exercised: (1) Because no satisfactory proof was offered to explain the accident. (2) Because, even if the theory of a jammed propeller be adopted, the tug was still negligent in bringing the schooner too near the dock before giving the order to re 1. Appeal and error 655(2)-Bill of exceptions, filed nearly year after findings and rulings, must be stricken, in absence of motion for new trial or request for extension (District Court rule 19). Under District Court rule 19, bill of exceptions, relating to taking of testimony and to trial court's findings and conclusions, not filed until year after findings and conclusions were made, must be stricken from record on motion, in absence of motion for new trial or request for extension of time for filing bill. 2. Appeal and error 555-Assignments of error, based on bill of exceptions stricken from record, cannot be reviewed (District Court rule 19). Assignments of error, based on bill of exceptions stricken from record, because not seasonably filed under District Court rule 19, cannot be reviewed. 3. Appeal and error 344-Order denying motion to charge trustees held final as respects time for filing writ of error. Order denying plaintiff's motion to charge trustees, supplemented by entry on docket, held final order, and writ of error, not filed until nearly year thereafter, was not seasonably filed. District Court rule 22, promulgated February 15, 1916, contemplates that, when cause is ripe for judgment and no judgment has been awarded until after expiration of term, and time for filing bills of exceptions has expired, or no allowance of bills of exceptions is pending, judgment shall be entered as of last day of term. 5. Judgment 272-Judgment entered after expiration of term held considered entered as of last day of term, and writ of error not taken within statutory time thereafter must be dismissed (District Court rule 22). Under District Court rule 22, where case was ripe for judgment at March, 1925, term, judgment entered after such term expired is regarded as entered as of the last day of the March term, and writ of error not taken within statutory time thereafter must be dismissed. BINGHAM, Circuit Judge. This is an action of contract brought by the Fleet Corporation against the Atlantic Corporation, in which the New England Trust Company and the National Union Bank of Boston were summoned as trustees. The answers of the Trust Company and the Union Bank disclosed that each of them had on hand certain specific sums due and owing to the principal defendant at the time of the service of the writ upon them. The plaintiff on March 12, 1925, moved that the Trust Company and the Union Bank be charged as trustees in the amounts disclosed in their answers, with interest thereon up to February 21, 1925. On March 26, 1925, the cause was set down for hearing on the plaintiff's motion to charge the trustees, at which time a trial was had. Thereafter on May 4, 1925, the court rendered an opinion embodying conclusions of fact and rulings of law, and denied the motion of the plaintiff to charge the trustees. The cause was thence continued from term to term to the March term, 1926, when on March 24, 1926, the plaintiff filed a motion asking that an order be entered discharging the trustees. On March 29, 1926, the cause came on to be heard on this motion, and the parties having been heard the court on April 2, 1926, entered a formal order discharging the trustees. On April 30, 1926, the plaintiff filed a bill of exceptions pertaining to the matters tried and determined in March and May, 1926, between it and the Trust Company, which was allowed May 3, 1926, but without prejudice to any rights of the Trust Company to have the bill of exceptions dismissed, if not seasonably presented. And on May 3, 1926, the plaintiff also filed a petition praying that a writ of error be allowed it to review the judgment or order of March 24, 1926, discharging the trustees and filed its assignments of error. This petition was allowed, but likewise without prejudice to any rights of the Trust Company to have the writ dismissed, if not seasonably brought. In its assignment of error the plaintiff complains that the court erred (1) in not allowing the motion of the plaintiff to charge the trustees with interest on the deposits standing to the credit of the principal defendant; (2) in holding that the interest on a commercial deposit was in this respect unlike the interest on an ordinary interest-bearing debt and was not held subject to an attachment by trustee process of the principal amount; (3) in admitting the testimony of James R. Hooper as to the alleged custom of banks in the matter of holding interest subject to attachment by trustee process; (4) in admitting the testimony of James D. Brennan as to the alleged custom of banks in the matter of holding interest subject to an attachment by trustee process; and (5) in ruling that the plaintiff had acquiesced in the payments of interest to the principal defendant. The Trust Company now moves (1) that the bill of exceptions be stricken from the record on the ground that it was not filed within the time allowed by law or the rules of the District Court; and (2) that the writ of error be dismissed on the ground that it was not sued out within the time allowed by law-that the order of May 4, 1925, denying the plaintiff's motion to charge the trustees was in fact and in law a final order discharg ing the trustees, and such being the case, the writ of error was not seasonably sued out. [1] It is apparent that the questions sought to be raised in the assignments of error cannot be passed upon without recourse to the bill of exceptions, so that we may have the facts and the evidence before us, on which the alleged errors are predicated. If, there fore, the bill of exceptions was not properly made a part of the record and is not open to our consideration, no questions are presented for our determination. We proceed therefore to consider whether the bill of exceptions was seasonably filed, or must be stricken from the record as requested. Rule 19 of the District Court, being the rule in force at the time in question, reads as follows: "Bills of exceptions to any ruling of the court may be filed, and notice thereof in writing given to the adverse party within twenty days after the ruling is made, or in case of rulings made during a trial or hearing on the merits within twenty days after the verdict of the jury or finding by the court, unless the court or judge shall otherwise order, and it or he may for good reason allow a period therefor beyond the term or after judgment." The trial of the matters presented by the plaintiff's motion to charge the trustees involved the taking of testimony, the finding of facts, and the decision of questions of law. These findings and rulings were made May 4, 1925, and, together with the evidence taken at the trial, are the matters to which the bill of exceptions relates. The bill of exceptions was not filed until April 30, 1926, nearly a year after the findings and rulings were made. Such being the case, and no motion for a new trial having been made, and no extension of the time for filing the bill of exceptions having been asked for or allowed, the motion to strike the bill of exceptions from the record must be granted. Slip Scarf Co. v. Wm. Filene's Sons Co. (C. C. A.) 289 F. 641, 643. [2] The bill of exceptions being stricken from the record, the questions presented by the assignments of error cannot be reviewed, and for this reason, if for no other, the writ of error must be dismissed. [3] While it is not necessary for us to consider whether the order of May 4, 1925, denying plaintiff's motion to charge the trustees, was a final order, and the writ of error seasonably prosecuted, we think we should de so. The order of May 4, 1925, was supplemented by its entry on the docket on or before May 6, 1925. If, then, this order, so supplemented, was in substance and legal effect a final order discharging the trustees, |