Finch & Coleman, for libelant.

Convers & Kirlin, for respondent.

HOLT, District Judge. This is an action to recover damages for personal injuries. The respondent, Eyre, in the summer of 1902, chartered the yacht Viva. The libelant, Sievers, shipped as seaman on board the Viva on July 31, 1902, and served until August 9, 1902, the date of the accident. It was part of Sievers' duty to clean the brasswork about a part of the yacht, and, among other things, a brass cannon, used for firing salutes. He also, as a part of his duty, frequently fired salutes with this cannon. Shortly after he was employed, the yacht went on a cruise with the yacht club, and on the evening before August 9th was lying in the harbor of Marblehead, Mass. The commodore's boat came into the harbor, and a salute was to be fired on the Viva. Benson, one of the men, went into the cabin and got a cartridge, and the captain at the same time went into the cabin and got another cartridge. Benson put his cartridge in the gun, and fired it, and then the captain placed the other cartridge, which he had brought out, in the gun, and left the gun loaded. The next morning Sievers, in the regular course of his duty, proceeded to clean the gun. He drew it back on deck, and tipped the muzzle down toward the deck, steadying the gun with his foot under the muzzle, and proceeded to polish the brasswork of the cannon with waste. While doing so, he pulled the spring near the breech, which fired the gun. The charge shattered his foot, so that it became necessary to amputate his leg between the ankle and the knee. He did not know that the gun was loaded, but could easily have ascertained it by opening the breech before starting to clean the gun.

The libelant has suffered a pitiable injury, but I do not see that the respondent is legally responsible for it. The libelant's counsel claims. that the respondent is liable under the rule that requires a master to furnish a safe place and appliances for a servant to work; but the gun and its appliances were in perfect condition, and the danger of being injured by it was a danger which was inherent in the use of all guns. The libelant, by engaging to render service on the yacht, assumed this danger, as well as all other dangers which were inherent in the service. The libelant's counsel claims that it is the custom generally on all vessels, and was the custom on the Viva, never to have the gun loaded until immediately before it was fired. The evidence, in my opinion, does not clearly establish this fact. Undoubtedly, such a gun is usually not kept loaded; but probably at certain. times, when salutes are being fired frequently, and sometimes on very short notice, it is occasionally loaded in advance. The firing of salutes on yachts may seem a useless and childish practice, and occasionally causes serious injury, but it is the universal practice of yachts to have and use such guns, and the libelant was entirely familiar with such practice, and accustomed to such use. But if it be assumed that there was negligence in leaving the cartridge in the gun over night, it was the negligence either of Benson or of Ericson, the captain of the yacht, both of whom, in this respect, I think, are to be re

garded as fellow servants of the libelant. The captain of a vessel is undoubtedly, for many purposes, not regarded as a fellow servant with the men, but in what he did in this matter he was discharging an ordinary duty of a seaman in the navigation or management of the yacht, and is, in my opinion, to be regarded simply as a fellow servant, for whose negligence the owner is not liable. Olsen v. Oregon, etc., Co. (D. C.) 96 Fed. 109; Hughes on Adm. § 101, and cases cited. The libelant's counsel claims that this case is governed by the provisions of the employers' liability act either of New York or Massachusetts. It is a question of some doubt whether either of these statutes can be properly considered in this case. The accident occurred at Marblehead, Mass. The Massachusetts act is not in evidence. The New York act could not have any application to an accident occurring on a vessel in Massachusetts, except on the theory that the vessel was registered or had her home port in New York; but I do not recall any evidence as to where the home port of the Viva was. I have, however, examined the statutes both of New York and Massachusetts. The New York act (Laws 1902, p. 1748, c. 600) was based on the Massachusetts act (Laws 1887, p. 899, c. 270), although differing from it in various respects. Both acts only apply when an employé "is himself in the exercise of due care and diligence at the time." In my opinion, Sievers was not exercising due care and diligence at the time. He was entirely familiar with the mechanism of this gun. The breech could have been opened by a single movement, in a second, and, if opened, it would have shown that the gun was loaded. In my opinion, any man that works about a gun, having it in a position in which, if discharged, it will injure him, is negligent if he does so without first ascertaining whether it is loaded. Undoubtedly, the fact that Sievers was guilty of contributory negligence would not completely bar a recovery under the general rule in admiralty, but would only lead to a division of damages (The Max Morris, 137 U. S. I, II Sup. Ct. 29, 34 L. Ed. 586); but, in my opinion, if the claim is based on either of the employers' liability acts of New York or Massachusetts, any contributory negligence bars a right of

recovery.

The libel should be dismissed, without costs.

SLEEPER v. WINKEL.

(Circuit Court, E. D. Pennsylvania. May 11, 1903.)

No. 47.

1. BUILDING AND LOAN ASSOCIATION-INSOLVENCY-BORROWING STOCKHOLDERCREDIT FOR DUES.

In the absence of contractual provision, a borrowing stockholder is not entitled to credit from an insolvent building and loan association for dues paid on his stock.

Furth & Singer and Russell & Winslow, for complainant.

J. O. Ulrich, for respondent.

¶ 1. See Building and Loan Associations, vol. 8, Cent. Dig. §§ 63, 66.

J. B. MCPHERSON, District Judge. The complainant is the receiver of an insolvent building and loan association, chartered by the state of Pennsylvania, and was appointed by this court with power, inter alia, "to bring such suits and actions as are necessary to the collection, caring for, and preserving of the property of [the association], said receiver being authorized to bring or defend such suits, either in this district or in any other district, state, or jurisdiction, * * and in either the state or federal courts, as he may be advised by counsel, * * * and he is authorized to bring or defend such actions or suits either in his own name or in the name of [the association]." His right to maintain this suit, therefore, although the defendant is a resident of the Eastern District of Pennsylvania, and the suit is for only $200, is supported by the decision of the Supreme Court in White v. Ewing, 159 U. S. 36, 15 Sup. Ct. 1018, 40 L. Ed. 67.

The bill seeks to recover from a borrowing stockholder the amount actually received by him from the association, with interest, less such sums as he may have paid on account of premium and interest. The defendant asks to be credited also with the amount he has paid as dues upon his stock, and the validity of this defense is the single point to be considered. It seems to me to need little consideration, however, for, in my opinion, it is already settled, both by the decisions of the Supreme Court of Pennsylvania and of the federal courts. In Strohen v. Franklin Saving Fund Association, 115 Pa. 273, 8 Atl. 843, the Pennsylvania court declared its opinion as follows:

"The insolvency of the company, as before observed, puts an end to its operations as a building association; to a certain extent, it also ends the contract between it and its members, respectively, and nothing remains but to wind it up in such a manner as to do equity to creditors and between the members themselves. As regards the latter, care should be taken to adjust the burdens equally, and not to throw upon either borrowers or nonborrowers more than their respective share. That result may be reached by requiring the borrower to repay what he actually received, with interest. He would then be entitled, after the debts of the corporation are paid, to a pro rata dividend with the nonborrower for what he has paid upon his stock. He will thus be obliged to bear his proper share of the losses. To allow him to credit upon his mortgage his payments on his stock would enable him to escape responsibility for his share of the losses, and throw them wholly upon the nonborrowers. In other words, the borrower would escape without loss. It will not do to administer the affairs of an insolvent corporation in this manner."

This decision was cited with approval in Callahan's Appeal, 124 Pa., on page 145, 16 Atl. 638, and is not disturbed by York Trust Co. v. Gallatin, 186 Pa. 150, 40 Atl. 317, as the following quotation from the opinion delivered in that case will show:

"These and other cases that might be cited distinctly recognize the right of the debtor to direct appropriation of the payments on the stock to the extinguishment of the debt. His power to so direct before the intervention of the rights of creditors cannot be doubted. It is only where the rights of creditors attach, by assignment, as in the cases last cited, or by legal process in insolvency, as in Strohen v. Franklin Saving & Loan Association, supra, that the debtor's right of appropriation is forfeited. Until thus forfeited, his right remains. He may appropriate or refuse to appropriate payments on stock in liquidation of the loan, even after default and suit on the bond

122 F.-47

(Watkins v. Workingmen's B. & L. Association, 97 Pa. 514); or after sale of his realty by the sheriff (Early & Lane's Appeal, 89 Pa. 411). Bearing in mind these principles, in which all the cases substantially agree, it clearly follows that, where the appropriation is made at the inception of the contract of loan, it cannot thereafter be successfully questioned."

The decision is put expressly upon the ground that the bond securing Gallatin's loan contained the following clause:

"And, further, I, the above-named John D. Gallatin, do hereby expressly agree that all money, heretofore paid or hereafter to be paid by me into the association on the stock I now hold in the same, shall be taken and consid ered as payment on, and in liquidation of, this bond."

This was held by the court to be an agreement mutually binding Gallatin and the association, and manifestly intended to operate as an express appropriation of the payments on the stock toward payment of the bond. As there is no such clause in the defendant's bond now before the court, and no evidence otherwise of any appropriation of the payments upon his stock as credits upon the bond, Gallatin's Case has no application.

In the federal courts the point has been ruled in the same way, as will appear from the fifth paragraph of the syllabus to Coltraine v. Blake, 113 Fed. 785, 51 C. C. A. 457, decided by the Circuit Court of Appeals for the Fourth Circuit:

"Where a stockholder in a building and loan association becomes also a borrower, his contract as such is governed by the local law, and where by such law it is usurious, in a settlement on the winding up of the association in insolvency before the maturity of his loan he should be charged with interest on the sum borrowed at the legal rate, and credited with all sums paid as premiums and interest; but the local law does not govern as to payments made by him as dues on his stock which are under his contract as a stockholder, and the principles of equity require that as to such payments he be placed on an equality with nonborrowing stockholders, and share ratably with them in the assets remaining after the debts of the association are paid, and he is not entitled to credit on his loan for such payments where the proceedings are in a federal court, whatever may be the rule of the courts of the state."

Whether, therefore, the decision of the question is to be governed by the local law or by the federal law, the same conclusion would be reached; and, accordingly, without further discussion, it is ordered that a decree be entered for the complainant.

UNITED STATES v. CURLEY et al.

(Circuit Court, D. Massachusetts. April 30, 1903.)

No. 1,949.

1. CONSPIRACY-FRAUD ON FEDERAL GOVERNMENT-CIVIL SERVICE EXAMINATION -IMPERSONATION OF ANOTHER-CONSTRUCTION OF STATUTES.

Rev. St. § 5418 [U. S. Comp. St. 1901, p. 3666], punishes one who falsely makes or forges a writing "for the purpose of defrauding the United States," or who, for such purpose, presents at the office of any federal officer such false writing. Section 5440 [page 3676] punishes persons who conspire "to defraud the United States in any manner or for any purpose." Held, that a conspiracy by which one falsely impersonates

another at a civil service examination, and makes a declaration sheet for the latter, is within the statutes; pecuniary fraud not being alone intended.

On Demurrer to Indictment.

This indictment is for conspiracy against the United States, and sets forth that Hughes, desiring to procure an appointment as letter carrier-a position in the classified civil service of the United States-and for the purpose of procuring the placing of his name on the list of persons eligible to appointment as letter carriers, and for the purpose of defrauding the United States, unlawfully agreed with Curley that the defendant Curley should falsely impersonate Hughes at a civil service examination, and do all acts required by the board of examiners, and sign the name of Hughes to such examination papers as should be delivered to Curley for examination while he should personate said Hughes; that Curley, in pursuance of said conspiracy, did falsely and unlawfully gain entrance to an examination, and, for the purpose of defrauding the United States, did falsely make a certain writing, known as a "declaration sheet." There are also allegations of presenting false papers to an officer of the United States.

The indictment contains three counts: The first, charging a conspiracy to defraud the United States under section 5440, Rev. St. [U. S. Comp. St. 1901. p. 3676]; the second, a conspiracy to commit an offense against the United States, to wit, an offense set out in section 5418 [page 3666], to falsely make a writing for the purpose of defrauding the United States; the third, a conspiracy to commit an offense against the United States, the offense being under section 5418, to wit, to present a false writing to an officer of the United States. The case is before the court on demurrer to the indictment.

Henry P. Moulton, U. S. Atty., and William P. Lewis, Asst. U. S. Atty.

Heman W. Chaplin, for defendants.

BROWN, District Judge (after stating the facts as above). The substance of the defendants' contention on demurrer is that the words "for the purpose of defrauding the United States," in section 5418, Rev. St. [U. S. Comp. St. 1901, p. 3666], and "to defraud the United States in any manner or for any purpose," in section 5440 [page 3676], signify only direct pecuniary fraud by depriving the United States of money or property. Upon consideration of section 5418. and upon similar facts, this point was decided contrary to the defendants' contention in United States v. Bunting (D. C.) 82 Fed. 883. The point was also considered, though not decided, by the Court of Appeals of the District of Columbia, in Palmer v. Calladay, June 18, 1901, reported in Washington Law Reporter, Vol. 29, No. 31, pages 532, 534, the opinion saying:

"It is claimed by appellee that to defraud the United States must mean to deprive it of money wrongfully, or of something of money value, and that a falsehood or trick by which its officers are deceived in the matter of selecting those who are to perform work for it could not be fraud against the United States. We do not agree to this proposition. The Civil Service Commission is a legal agency of the United States, created by act of Congress; and through it the President undertakes to find and appoint such persons as may best promote the efficiency of the civil service; and, to that end, regulations are prescribed, by means of which the age, health, character, knowledge, and ability for the branch of the service into which he seeks to enter, of each candidate, may be fully ascertained. If falsehoods are imposed upon the persons charged with the duty of ascertaining these qualifications, and made to take the place of facts, then the United States is defrauded—is deprived by