fore half past five. Q. What did you do after coming on deck? A. I came on deck. I went up to the mizzen topsail clew line. I hear the captain sing out to haul the sheets flat. Q. Then what did you do after that? A. After we was finished with the topsail clew line, some other fellows hauled the sheets tight. I went up into the mizzen rigging to make the topsail fast. Q. Now, at that time, did you see the approaching schooner? A. Yes, sir. Q. At that time did you hear any report? A. I heard somebody sing out, 'Vessel ahead!' She was on the starboard side of us. Q. Where were you then? A. I was up in the mizzen topsail crosstree, sir. Q. What were you doing? A. I was furling the sail fast. Q. When you heard the vessel reported, did you see her? A. Yes, sir. Q. Where were you when you heard the lookout report the schooner? A. I was up in the rigging the first time I heard it. Q. Was that before or after they had finished hauling the sheets in? A. That was before they was finished hauling the sheets in."

Knutsen, another sailor, who came on deck to help haul in the sheets, says:

"Q. What were you doing when she was reported? A. I was after clewing up the mizzen topsail then. Q. Where were you on deck? A. I was aft then, and then we went forward when we were clewing up the fore-topsail. Q. Where did you see this vessel approaching? A. On the starboard bow. Q. What did you see of her? A. I see her two lights. Q. After that did you go forward? A. Yes, sir; after that we went forward, all of us. Q. And you were then clewing up the fore-topsail? A. Fore-topsail? Yes, sir; and me and the mate went on forecastle deck. The man on lookout was going to make the foretopsail fast, because it was his watch on deck. Q. Did you hear the man on lookout report a vessel? A. I did, sir. Q. Where were you? A. I was 'midships then. I heard him twice report it. He sung out, 'I see a vessel, but I cannot see the lights.' That was at the time I was hauling in the sheets. Q. That was at the time you were hauling in the main sheets? A. Yes, sir. Q. That was the time you were hauling in the main sheet you heard the man on lookout say- A. 'I. see a vessel, but cannot see any lights on her.' Q. That was the first time you heard her reported? A. Yes, sir. Q. Then you heard her reported a second time, didn't you? A. Yes, sir. Q. What were you doing when you heard her reported the second time? Clewing up the mizzen topsail."

A.

Oelsen, the man at the wheel, testifies that it was only about a quarter of an hour before the collision that the sheets were hauled in:

"Q. At the time of the collision, where was the captain? A. He was aft, sir. Q. How long had he been on deck? A. On deck about twenty minutes before the collision. Q. How many other men on deck? A. All hands, sir. Q. What were they doing? A. About a quarter of an hour before the collision we hauled in the sheets, hauling them in fore and aft. Q. How many men clewing up the sails or hauling in the sheets? A. Four of us. Q. Was any change made in the course of the vessel to haul in the sheets? A. We had to keep her off the shore about north by east half east, to get more room to haul in the sheets. Q. After you went off, what did you do with the wheel? Did you come up into the wind? A. The captain took the wheel then. Q. What did he do with it? A. He came up into the wind. Q. That was how long before the collision? A. Fifteen minutes."

Capt. St. John, in his testimony, admits he gave an order to the mate in regard to clewing up the sails after the Manning was sighted: "Q. Did you give him [the mate] any orders in regard to the sails then [after the Manning was seen]? A. Well, about the time that he got on the bridge, going from the poop deck to the house,-the forward house.--I ordered him to clew up the fore-topsail. Q. What did that require to do? A. Well, cast off the halyards and sheets, and haul in on the clew lines. Q. That would be forward, of course? A. Yes, forward. Q. Do you know whether he obeyed that order? A. I heard the topsail halyards rattling immediately afterwards."

The mate's testimony, to the same effect, is as follows:

"Q. In going forward, did you get any order from him [the captain]? A. Yes, sir. Q. What was that? A. He told me to clew up the fore-topsail. What did you do then? A. I ordered a man to let go the halyards."

Q.

The clewing up of the fore-topsail, which Capt. St. John and the mate say took place after they saw the Manning, seems to have been a part of the operation of hauling in the sheets. On this point the testimony of Knutsen is instructive:

"Q. In the first place, you hauled in the main sheets? A. Yes, sir. Q. Then you went forward to haul in the jib and staysail sheets, and then went aft to clew up the mizzen topsail? A. Yes, sir; the mizzen topsail was partly clewed up. We had to clew it up better. Q. As soon as you got through pulling in the jib and staysail sheets, you went to help clew the mizzen topsail up? A. Yes, sir. Q. Finished it? A. Yes, sir. Q. Then you and the mate went forward to clew up the fore-topsail; is that right? A. Yes, sir."

Again, on the important point whether the sheets were hauled in before the lights were set, Capt. St. John is directly contradicted by his own witnesses. He testifies that the sheets were hauled in before the lights were set, and that the Manning was not seen until 10 minutes after the lights were set. On the other hand, Knutsen testifies as follows:

"Q. Were you on deck when the side lights were put up? A. No, sir; I was below then. We were called out to clew up the sheets and haul in the topsail. Q. When you came on deck to haul in the sheets, the side lights were all set? A. Yes, sir. Q. And they were set when you came up on deck, and before you hauled in the sheets? A. Yes, sir. Q. Positive of that? A. Yes, sir; I am sure of that."

Johansen also testifies as follows:

"Q. You and Knutsen were in the same watch? A. Yes, sir. Q. You came on deck at the same time? A. I came a little before him. Q. And you at once went to clew up the mizzen topsail? A. Yes, sir. Q. Did you have your side lights up at that time? A. Yes, sir; I was not on deck when they put them up, but I know they was up."

The testimony of Capt. Parker, master of the Du Vignon, cannot be said to confirm Capt. St. John, but tends to corroborate the account of the Manning that the May must have changed her course to haul in her sheets after she was seen by the Manning.

Capt. Parker was in company with the May that day from 11 o'clock until half past 5. He saw the May change her course, and come up into the wind, but did not see the collision:

"Q. 8. On that afternoon, did you see anything of the Jennie C. May? A. Yes; I was in company with her. Q. 9. For what time? A. From eleven o'clock until half past five. * Q. 22. Could you see the vessel? A. Yes, sir.

Q. 23. Did you see the collision? A. No, sir. Q. 24. Did you hear the sound of any collision? A. I did not. Q. 25. How far off were you from the May at this time? A. I was somewheres about half a mile. *** Q. 32. When you last saw the May, how did she bear from your vessel? A. About two points on our port bow. Q. 33. Could you see her sails? A. Yes, sir. Q. 34. What was she doing? A. The last time I saw her, she kept off, and then luffed up into the wind to take her sheets off. Q.35. You say that you saw him keep off? A. Yes. Q. 36. And then luff up into the wind? A. To take her sheets in. Q.37. And that was about half past five? A. No, sir; before that time. Q. 38. That was the last you saw of her? A. Yes, sir. Q. 39. How much did he keep off? A. I should say swung his vessel off three or four points. Q. 40. And then he came back on his course? A. No, sir; he came dead up into the wind. Q. 41.

Can you tell what time that was? A. No, sir; I could not within a few minutes. I should think it was somewheres in the neighborhood of five o'clock. Of course, when I saw these things I did not think I should be called upon to testify in this case, and so, consequently, could not swear to the time. Q. 42. But you could see the change of course distinctly, could you not? A. Yes, sir. Q. 43. Did you see him take any sails in at that time? A. I did not. Q. 44. In stating about five o'clock, you would not state within half an hour, one way or another? A. I can state within half an hour, but not within ten or fifteen minutes. Q. 45. It might have been a quarter past five? A. I should hardly think it was as late as quarter past five; somewhere between ten minutes of five and quarter past five. I do not know; that is only from memory. Q. 46. And at that time she came right up into the wind? A. Yes, sir. Q. 47. How close to the wind, should you say? A. Right up, so that her sails were shaking. Q. 48. Well, how many points should you think? A. When you take your vessel up into the wind to take your sheets in, you let her come right up head to the wind. Q. 49. Well, she probably came within two or three points of the wind? A. Within a point or two, I should say, of the wind. Q. 50. At that time you had your side lights up? A. Oh, yes, sir."

An examination of the whole evidence on the part of the May does not support the statement of Capt. St. John that the May changed her course to the westward to haul in her sheets before the approaching vessels were in sight of each other. On the contrary, some of the witnesses on the May confirm the uniform and consistent account of the witnesses on the Manning that the May made such a maneuver after she was seen by the Manning.

To find in favor of the May on this issue, it may be said that we must accept Capt. St. John's account to be correct, although he is contradicted by his own witnesses and by the witnesses for the Manning. We do not feel warranted, upon the evidence, in reaching such a conclusion. This change of course on the part of the May accounts for the collision. That she made this maneuver some little time before the collision is admitted. Assuming that it was made after the Manning sighted her, the evidence from both vessels, as a whole, becomes fairly reconcilable, and the cause of the collision is clear. If, however, we eliminate this factor from the case, it becomes very difficult, upon the evidence, to reach any satisfactory conclusion. If it appears that the May had the right of way, it is also abundantly shown by the record that there was more or less confusion on board of her before the collision, and that she did not have an efficient lookout. On the other hand, the Manning maintained a particularly vigilant lookout and good discipline, so that, on wellsettled rules, the presumptions are in favor of the proofs coming from her master and crew. Upon full consideration of the evidence, we think that this change of course on the part of the May took place after she was seen by the Manning, and that this maneuver on her part was the cause of the collision.

In No. 275 (The Mary Manning) the decree of the district court is reversed, and the case is remanded to that court, with instructions to dismiss the libel, with costs, and the appellant recovers the costs of appeal.

In No. 276 (The Jennie C. May) the decree of the district court is reversed, and the case is remanded to that court, with instructions to enter a decree for the libelants, with costs, and the costs of appeal are awarded to the appellants.

MEMORANDUM DECISIONS.

CITY OF ANNISTON v. UNITED STATES ex rel. SAFE-DEPOSIT & TRUST CO. OF BALTIMORE. (Circuit Court of Appeals, Fifth Circuit. January 17, 1900.) No. 829. In Error to the Circuit Court of the United States for the Northern District of Alabama. T. W. Coleman, Jr.. for plaintiff in error. J. J. Willett, for defendant in error. Dismissed, pursuant to the twentieth rule.

CUMBERLAND COAL CO. v. DUN et al. (Circuit Court of Appeals, Sixth Circuit. November 13, 1899.) No. 722. In Error to the Circuit Court of the United States for the Middle District of Tennessee. Dismissed for failure to print the record, pursuant to the twenty-third rule.

GREEN v. UNITED STATES.

(Circuit Court of Appeals, Fifth Circuit. January 22, 1900.) No. 845. In Error to the Circuit Court of the United States for the Northern District of Alabama. error. J. Ward Gurley, for the United States. cution.

Lee Cowart, for plaintiff in Dismissed for want of prose

KENAN v. TEXAS & P. RY. CO. (Circuit Court of Appeals, Fifth Circuit. December 20, 1899.) No. 875. In Error to the Circuit Court of the United States for the Northern District of Texas. T. J. Freeman, for defendant in error. Dismissed for want of prosecution.

MICHIGAN TEL. CO. v. CITY OF CHARLOTTE et al. (Circuit Court of Appeals, Sixth Circuit. November 13, 1899.) No. 721. Appeal from the Circuit Court of the United States for the Western District of Michigan. A. C. Angell, for appellant. Garry C. Fox and James M. Powers, for appellees. Dismissed upon stipulation. See (C. C.) 93 Fed. 11.

NEW ENGLAND R. CO. v. CONROY. (Circuit Court of Appeals, First Circuit. January 19, 1900.) No. 207. In Error to the Circuit Court of the United States for the District of Massachusetts. Frank A. Farnham, for plaintiff in error. James E. Cotter, for defendant in error. Before COLT, Circuit

Judge, and WEBB and ALDRICH, District Judges.

PER CURIAM. Having considered the questions involved in this case, and having certified to the supreme court the following questions of law arising on the facts stated in the record: First, whether the negligence of the conductor was the negligence of a fellow servant of the deceased brakeman; second, whether the negligence of the conductor was the negligence of its vice or substituted principal or representative, for which the corporation is responsible, and the supreme court having answered the first question in the affirmative and the second question in the negative (20 Sup. Ct. 85, Adv. S. U. S. 85. 44 L. Ed. ), it follows that the judgment of the circuit court must be reversed, the verdict set aside, and the case remanded to that court for further proceedings. The judgment of the circuit court is reversed. the verdict set aside, and the case remanded to that court for further proceedings.

In re PLIMPTON et al. (Circuit Court of Appeals, Second Circuit. December 14, 1899.) No. 48. Appeal from the District Court of the United States for the Northern District of New York. E. F. Jellinek, for appellant. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. No opinion. Affirmed, without costs.

RECTOR v. SOUTHERN BUILDING & LOAN ASS'N et al. (Circuit Court of Appeals, Eighth Circuit. November 20, 1899.) No. 1,274. Appeal from the Circuit Court of the United States for the Eastern District of Arkansas. S. R. Cockrill. for appellant. J. W. House and Lawrence Cooper, for appellees. No opinion. Reversed and remanded, with directions to enter a decree for such sum as may be found to be due on the contract in suit, treating it as valid and not usurious, and directing that the decree of this court be entered nunc pro tune as of May 29, 1899. See (C. C. A.) 98 Fed. 171.

SMITH v. CLEVELAND, C., C. & ST. L. RY. CO. (Circuit Court of Appeals, Sixth Circuit. October 5, 1899.) No. 698. In Error to the Circuit Court of the United States for the Southern District of Ohio. Thomas L. Michie and Joel C. Clore, for plaintiff in error. Aaron W. Goldsmith, for defendant in error. No opinion. Affirmed.

UNITED STATES ex rel. SAFE-DEPOSIT & TRUST CO. OF BALTIMORE v. CITY OF ANNISTON. (Circuit Court of Appeals, Fifth Circuit. January 17, 1900.) No. 830. In Error to the Circuit Court of the United States for the Northern District of Alabama. J. J. Willett, for plaintiff in error. T. W. Coleman, Jr., for defendant in error. Dismissed, pursuant to the twentieth rule.

WRIGHT v. PHIPPS et al. FISHER v. WRIGHT. DEGRAUW v. ATTRILL et al. ATTRILL et al. v. DEGRAUW. GATES v. SAME. (Circuit Court of Appeals, Second Circuit. December 19, 1899.) Nos. 14-18. Appeals from the Circuit Court of the United States for the Eastern District of New York. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. No opinion. Affirmed on motion of counsel for appellee. See (C. C.) 90 Fed. 556.

BENHAM v. WELLS, FARGO & CO. (Circuit Court, N. D. California. November 17, 1899.) No. 12,740. Action at law to recover damages in the sum of $50 for the alleged neglect of the defendant, as a common carrier, to receive and transport a certain package of merchandise offered and tendered by plaintiff for conveyance and transportation. McGowan & Squires, for plaintiff. E. S. Pillsbury, for defendant.

MORROW, Circuit Judge. For the reasons stated in the opinion rendered to-day in the case of Johnson v. Wells, Fargo & Co. (C. C.) 98 Fed. 3, this cause will be remanded to the justice's court of the city and county of San Francisco, state of California.

END OF CASES IN VOL. 98.