earthquake and robbers could not have af- prejudiced by being forced to reimburse the fected them. It is, of course, quite clear why the bill of lading, reciting that the goods were on board, was dated August 30, although the shipper knew that the vessel was not to arrive at Yokohama until September 2, and would not sail before the next day. The reason was that Nozaki had a contract with the libelant that shipment was to be made during June, July or August, 1923, and a failure to ship before September would be a cause of cancellation. Moreover, the letter of credit by the International Acceptance Bank provided that bills of lading must be dated on or before August 31 and drafts must be drawn on or before that date. Consequently, though the shipper could have had no idea that anything so unforeseeable as an earthquake would prevent the transportation of the goods, he did intend to procure the issue of shipping documents which would represent the merchandise as shipped at a time when it was not in fact on board, and he also intended to make it appear that he had performed his contract, when he was really in default. However common the practice may be of issuing on-board bills of lading when the goods are not yet laden, the practice is at best extremely negligent. It not only may mislead merchants as to their actual contract rights, but, if recognized as valid, is likely to deprive purchasers who import merchandise, banks financing their operations, and companies insuring the goods against risks of that certainty as to their rights and obligations which truthful conduct and fair business dealing at least tend to promote. The reason why consignees and banks so often desire on-board bills of lading is that at least some risks, such as fires on shore and delay in shipment, are left behind when the merchandise gets on the ship. At any rate, on-board bills of lading are often, as here, a requirement of the importer. In such circumstances there should be no sanction for an easy, unreliable practice of issuing bills which purport to be on-board bills, when merchandise has been delivered to the carrier, but has not been shipped. [7] The libelant has been prejudiced be cause, if a true bill of lading had been issued, it would have been able to cancel its contract with Nozaki, for failure to ship the goods in time, without incurring any liability to the bank, which would not have honored the draft on presentment of a "delivered for shipment" bill of lading. It has been further bank, in order to pay for goods which it never contracted to pay for unless actually shipped, goods which would have been in a place free from the special dangers that caused their loss, if the representations upon which the bank honored the letter of credit had been true. While the libelant may have a cause of action against Nozaki, it is not compelled to pursue it, but may rely on the estoppel, and assert its rights against the respondent because of the representations in the bill of lading. Compania Naviera Vasconzada v. Churchill & Sim, [1906] 1 K. B. 237. We hold the respondent estopped to deny that the hemp braid was shipped on the Alaska Maru on August 30. If shipment be taken as of that date, the exceptions in the bill of lading relied on can have no application. The libelant is entitled to an interlocutory decree providing for an assessment of the damages caused by the failure of the respondent to deliver the merchandise according to the terms of the bill of lading. The decree is reversed and the cause remanded. TURNER v. UNITED STATES. BRITISH BOARD OF TRADE v. SAME. 1. Collision 115-Charterer, owning refrig- Vessel being at fault for collision, charterer, appurtenance to ship's business and claimed to owning refrigerating plant which was necessary be part of ship, though removable under charter on termination thereof, must share the losses, in absence of evidence of any other value of such plant than as incident to and for use of ship. 2. Collision 115-Ship may be liable for collision wholly apart from owner's liability. A ship can be liable for collision wholly apart from its owner's liability; maritime law as to master's position and powers and vessel's responsibility being derived, not from civil law of master and servant or common law, but from commercial usages and jurisprudence of the middle ages. 3. Admiralty 29-Pendency of libel in rem does not bar suit in personam on same facts. suit in personam arising out of the same facts, Pendency of a libel in rem is not a bar to a as proceedings in rem and in personam may be 27 F.(2d) 134 joined in one cause of action, where admiralty rules do not prohibit it. 4. Admiralty 28-Ship is liable as principal for negligence of any one in lawful possession, whether as owner or charterer. A ship itself is to be treated in some sense as a principal, and becomes liable for the negligence of any one lawfully in possession of her, whether as owner or charterer. 5. Admiralty 28-Refrigerator held part of vessel, to which persons damaged may look for reimbursement for vessel's torts. Refrigerator held part of vessel carrying meat cargoes so as to entitle parties suffering damages to look to it for reimbursement for torts committed by vessel. Appeal from the District Court of the United States for the Southern District of New York. Libels by Eleanor Turner, as sole surviving executrix of William Henry Turner, de ceased, by the British & Argentine Meat Company, and by the British Board of Trade against the United States. From a part of a final decree limiting libelant Meat Company's recovery to half of its damages and permitting an offset of half of respondent's damages as against such libelant, the latter appeals. Affirmed. Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (W. H. McCrann, of New York City, of counsel), for appel lant. Charles H. Tuttle, U. S. Atty., of New York City (Charles E. Wythe, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States. Before MANTON, L. HAND, and SWAN, Circuit Judges. MANTON, Circuit Judge. On April 20, 1920, the American steamship Aseolus, the property of the appellee, and the British steamship Zero, under charter to the appellant, collided, and the latter, with her cargo, sank and became a total loss. The managing owner of the Zero and his co-owners filed a libel for damages for the loss of the hull and on behalf of the crew for their loss of personal effects. The British Board of Trade, as owner of part of the cargo of frozen meats laden aboard the Zero, sued for its loss, and the appellant filed a libel for loss of the value of the charter, its cargo, and as owner of the refrigerating machinery and insulation installed in the Zero. The only question presented upon this appeal is the one involving the loss of the refrigerating machinery and insulation installed on the Zero. The other claims have been disposed of. [1] The final decree entered provides that the [2] Appellant argues that it is not chargeable that the liability of the ship in rem exists The "The maritime law as to the position and powers of the master, and the responsibility of the vessel, is not derived from the civil law of master and servant, nor from the common law. It had its source in the commercial usages and jurisprudence of the middle ages. Originally, the primary liability was upon the vessel, and that of the owner was not personal, but merely incidental to his ownership, from which he was discharged either by the loss of the vessel or by abandoning it to the creditors." [3] In Homer Ramsdell Transp. Co. v. La Compagnie Generale Transatlantique, 182 U. S. 406, 411, 21 S. Ct. 831, 833, 45 L. Ed. 1155, the court said: "At common law, no action can be maintained against the owner of a vessel for the fault of a compulsory pilot." The pending of a libel in rem is not a bar to a suit in personam arising out of the same facts. Proceedings in rem and proceedings in personam are permitted to be joined in one cause of action, where the admiralty rules do not prohibit it. If the right against the ship and that against the owner are mutually coextensive, it would be difficult to justify cases permitting the two actions. Newell v. Norton, 3 Wall. 257, 18 L. Ed. 271; Planet Venus (D. C.) 113 F. 387; La Normandie (C. C. A.) 58 F. 427; Providence, etc., Ins. Co. v. Wager (D. C.) 35 F. 364. In the John G. Stevens, 170 U. S. 113, 18 S. Ct. 544, 42 L. Ed. 969, there was certified and answered by the Supreme Court the following question: [4] In Sturgis v. Boyer, 24 How. 110, 16 L. Ed. 591, a tug towing a ship lashed to the side ran into a lighter and damaged the cargo. The navigation was under the exclusive control of the master of the ship, and it was held that only the tug, which alone was negligent, was liable, and not the vessel, but they were two separate and distinct vessels. The John D. Rockefeller. (C. C. A.) 272 F. 67, 73, is to be distinguished for the same reason. The Barnstable, 181 U. S. 464, 21 S. Ct. 684, 45 L. Ed. 954, illustrates that the ship, as distinguished from her owner, may be the offending thing. The law in this country is well settled that the ship itself is to be treated in some sense as the principal and becomes liable for the negligence of any one who is lawfully in possession of her, whether as owner or charterer. [5] That the refrigerator, under the circumstances, was a part of the ship admits of little doubt. It, as part of the res, must share the loss. In The Witch Queen, Fed. Cas. No. 17,916, a vessel was equipped with a diving bell and air pump, and these were held liable for a materialman's lien, which attached to the vessel, because, though not "Is the lien for the damages occasioned by negligent towage, which arose on March 8, 1886, to be preferred to the previous state lien for supplies, the libel for supplies being filed last?" The court, answering the question in the required to put her in navigable shape, they affirmative, said: "The offending ship is considered as herself the wrongdoer, and as herself bound to make compensation for the wrong done. The owner of the injured vessel is entitled to proceed in rem against the offender, without regard to the question who may be her owners, or to the division, the nature or the extent of their interests in her. With the relations of the owners of those interests, as among themselves, the owner of the injured vessel has no concern. All the interests, existing at the time of the collision, in the offending vessel, whether by way of part ownership, of mortgage, of bottomry bond or of other maritime lien for repairs or supplies, arising out of contract with the owners or agents of the vessel, are parts of the vessel herself, and as such are bound by and responsible for her wrongful acts. Any one who had furnished necessary supplies to the vessel before the collision, and had thereby acquired, under our law, a maritime lien or privilege in the vessel herself, was, as was said in The Bold Buccleugh, before cited, of the holder of an earlier bottomry bond, under the law of England, 'so to speak, a part owner in interest at the date of the collision, and the ship in which he and others were interested was liable to its value at that date for the injury done, without reference to his claim.'" were indispensable to the accomplishment of the enterprise in which she was about to engage. In The Hope (D. C.) 191 F. 243, 246, the ship's engine and a net fixed to the hull of the vessel were held to be parts of the boat for the purpose of satisfying a supply man's lien, even though the net lifter was owned by a third party. In the Manila Prize Cases, 188 U. S. 254, 23 S. Ct. 415, 47 L. Ed. 463, armament appurtenances, including provisions and everything necessary to be used for its purpose, were held to be part of the ship. In The Frolic (D. C.) 148 F. 921, a chronometer, hired to the vessel by a third party, was regarded as part of the vessel in its condemnation and sale. In Paraiso (D. C.) 226 F. 966, oil tanks belonging to the charterer for carrying oil were held to be part of the vessel in limitation proceedings. The only difference in the last case and this is that in the former there was a demised charter while here there is a time charter. The courts do not permit a division of the res when it is made answerable for torts committed by the vessel, and though there be separate ownership of the refrigerating plant, as between the parties to the charter, it is a part of the vessel, to which those suffering damages are entitled to look for reimbursement for torts committed by the vessel. Decree affirmed. 27 F.(2d) 137 UNITED STATES ex rel. HASSELL v. MATHUES, U. S. Marshal. District Court, E. D. Pennsylvania. May 23, 1928. No. M-141. 1. Criminal law 700-District and prosecuting attorneys 8-Grand jury ~25-Prosecuting officers, committing magistrates, grand juries, and courts have duty of protecting persons from unfounded accusation. Ordinarily it is the duty of prosecuting of ficers, committing magistrates, and especially of grand juries, and may become duty of court, to protect persons from unfounded accusation. 2. Criminal law 633 (1)—Trial courts must protect persons from unjust conviction. It is the duty of the trial court to protect persons from unjust conviction. 3. Habeas corpus 92(1)-Court determines whether relator should stand trial on petition for habeas corpus, not whether guilt has been proved with certainty justifying conviction. On habeas corpus by person charged with crime, the question for the court in determining probable cause is whether relator should be called on to stand trial, not whether proof of his guilt has been established with that degree of certainty which would justify his conviction. 4. Habeas corpus 29-One protected from prosecution by limitations may be discharged on habeas corpus. One charged with crime may be discharged on habeas corpus, where it clearly appears that he is protected by statute of limitations. 5. Criminal law 145/2-Protection from prosecution under statute of limitation is sub stantive right. The right of protection from prosecution under statute of limitation is not merely a procedural right, but is a substantive right. 6. Habeas corpus 3-Petitioner, claiming protection under statute of limitation, held not entitled to discharge, in view of question of law involved (18 USCA §§ 582, 584, 585). Accused, claiming protection from prosecution under statutes of limitation (18 USCA §§ 582, 584, 585), held not entitled to discharge on habeas corpus, since question of law for trial court is involved. Habeas Corpus. Proceeding by the United States, on the relation of Max Hassell, against W. Frank Mathues, United States Marshal. Petition dismissed, and relator remanded to custody of respondent. John R. K. Scott, of Philadelphia, Pa., for plaintiff. testing the question of whether the relator should be held for trial. The controversy over this broad question turns upon two propositions advanced by the relator: (1) The evidence does not justify even an accusation of guilt. (2) The offense, if committed, was at a time such that the statute of limitations is a bar to prosecution. [1-5] We cannot be too often reminded that every person has thrown around him the double protection: (1) From unfounded accusation; and (2) from unjust conviction. In the ordinary course of prosecutions, it is the duty of prosecuting officers, committing magistrates, and especially of grand juries, to afford this first protection. It may likewise become the duty of the court, as in the instant case. It is, however, the duty of the trial court, and of it alone, to afford the second protection. The question presented to us thus becomes whether the relator should be called upon to stand trial, not whether the proof of his guilt has been established with that degree of certainty which would justify his conviction. This is what is commonly called a showing of "probable cause." Respecting this feature of the case before us, we see no need to do more than announce (without discussion) the conclusion reached that there is probable cause or ground for the prosecution. Whenever, however, it so clearly appears that the time of the commission of the offense was so long ago as that the accused is protected from accusation by the statute of limitations, he may be awarded this right on habeas corpus. There is as much a denial of what we have called the first right of every accused person, by holding him to answer an offense for which he cannot be lawfully prosecuted, as there is for one wholly unsupported by proofs. Whether the question is properly raised by demurrer, by special plea, or by the general issue plea, makes no difference. The right of protection is not a mere procedural one, but is a substantive right. If it appears that he cannot be convicted, he should not be put upon trial. If no other reason existed, the uselessness of the trial would be a sufficient one for dispensing with it. Just as, however, the prosecuting officer, nor the committing magistrate, nor the grand jury, nor the court on habeas corpus should usurp the functions by anticipating George W. Coles, U. S. Atty., of Phila- the judgment of the trial court and jury on delphia, Pa., for defendant. DICKINSON, District Judge. This writ was sued out for the obvious purpose of the subject of guilt, so they should refrain from the like usurpation of the functions of the trial court by an anticipation of any ruling it might make upon a question of law The petition for the writ of habeas corpus is dismissed, and the relator remanded to the custody of the respondent. which was an open one. Reduced to a practical question with respect to the law of the case, this means that, if clearly and beyond reasonable dispute a prosecution is barred by statute, it should be stopped in its earliest stage; but, if the law of the case is debatable, just as when the fact merits of the case are debatable, the ruling should await the de- In re UNITED REALTY & HOMEBUILDtermination of the trial court. ERS' CORPORATION. In 1. Bankruptcy No. 4984. 258-Bankruptcy [6] The answer to the question of what lim- District Court, D. Maryland. July 20, 1927. itation applies is to be found in the several acts of Congress mentioned below. phraseology they are directed to three general classes or types of offenses: (1) Cases of fraud affecting the United States; (2) cases arising under the revenue laws; and (3) those arising under the internal revenue laws. court should not administer property burdened with liens, where probable selling price would be insufficient to satisfy liens (Bankruptcy Act [II USCA]). A bankruptcy court is not required to administer property burdened with liens, and Act April 13, 1876 (18 USCA § 582). should only do so when this is for the interest This made the limitation three years. Act July 5, 1884 (18 USCA § 585). This made the limitation six years in all cases arising under the internal revenue laws. Act Nov. 17, 1921 (18 USCA § 582). This amended the act of 1876 by extending the limitation to six years for the offenses of defrauding the United States. Incidentally this was aimed at war frauds. Act Nov. 23, 1921 (18 USCA § 585). This amended the act of 1884 by making the limitation for offenses arising under the internal revenue laws three years, but the time is extended until the close of the session of the next grand jury, if the prosecution was begun (as in the instant case) before a commissioner within the three years. Act June 24, 1924 (section 1010 of the Revenue Act [18 USCA § 585]). This makes the limitation three years for offenses "arising under the internal revenue laws," and six years for the offense of defrauding the United States, with the same extension of time to the close of the session of the next grand jury. Act Dec. 27, 1927 (18 USCA § 582). This act incidentally was passed with the situation created by particular cases in mind. It provides (1) in all cases (except capital) for a three-year limitation; but (2) except as provided in R. S. § 1046 (18 USCA § 584), which for offenses arising under the revenue laws provides a five-year limitation, and may extend the time to the end of the next session of the grand jury. No opinion is now expressed thereon. The grand jury has not as yet closed its sessions. The most casual or the most careful reading of these statutes makes it clear that any question raised thereunder is one for the trial court to rule. of the general estate, in that there is a fair the liens, under Bankruptcy Act (11 USCA). prospect that property will sell for more than 2. Bankruptcy 258-That bankruptcy trustee might conduct sales of property subject to liens with less expense held not alone to authorize administration in bankruptcy (Bankruptcy Act [11 USCA]). That trustee in bankruptcy might conduct sales of property burdened with liens with less incidental expense than sale under direction of any other court is not alone sufficient, under Bankruptcy Act (11 USCA), to justify bankruptcy court's taking jurisdiction, if probable selling price is not sufficient to satisfy liens. 3. Courts 91(2)—Circuit Court of Appeals decision is binding on District Courts in circuit for propositions decided. Decision of Circuit Court of Appeals is binding on District Courts in that circuit, for propositions which it decides. In Bankruptcy. In the matter of the United Realty & Homebuilders' Corporation, bankrupt. Order in accordance with opinion, with permission to make trustee in bankruptcy a party to the mortgage foreclosure proceedings in the state court. Michael Miller, and Harry T. Kellman, both of Baltimore, Md., for Bonded Mortgage Co. of Baltimore. Mason P. Morfit, of Baltimore, Md., for Security Storage & Trust Co. Malcolm H. Lauchheimer, and Raphael Walter, both of Baltimore, Md., for Trustee. WILLIAM C. COLEMAN, District Judge. The sole question in this case is whether the holders of first mortgages on improved property, which is a part of the bankrupt estate, shall be permitted to foreclose them in the circuit court of Baltimore county, Maryland, in accordance with the provisions of the mortgages, or whether the bank |