posit account to the receiver upon the contention that it was entitled to apply that balance towards the payment of the note. It resisted the application for the order, as well in respect to the nature of the remedy invoked as upon the merits of the receiver's claim. The order requiring it to pay over to the receiver seems to have proceeded upon the theory that primarily the receiver was entitled to the custody of the fund, and if it should ultimately appear that the bank was entitled to retain the amount, either as a payment or as a set-off against its note, the court would make restitution. We think this an erroneous disposition of the matter. In an action like the present, to marshal and administer the assets of an insolvent corporation, it is optional with the plaintiff to join as parties defendant such persons as claim an adverse interest in assets in their possession alleged to belong to the corporation; and when this has been done, and a receiver has been appointed, the court upon hearing the parties will determine whether the custody of such assets shall, pending final decree, remain unchanged, or whether it shall be transferred to the receiver. Such a determination does not adjudicate or affect the ultimate rights of the parties; it extends only to the conservation of the assets until these rights are finally ascertained. Whether their custody shall be changed rests in the sound discretion of the court. If it should appear that the adverse claimants have a clear title to the assets, it would be an abuse of discretion to direct the custody to be surrendered to the receiver, and especially when because of the paucity of other assets they might become subjected to a lien for the expenses of administration. If, when the receiver is appointed, it is found that property alleged to belong to the corporation is in the possession of third persons who claim adverse title, and who have not been made parties to the action, the receiver cannot interfere with their possession. They are entitled to their day in court, and the receiver must proceed by suit in the ordinary way to try his right to the property, or the plaintiff must bring them in as parties to the action, and apply to have the receivership extended to the property in their hands. The power of a court to proceed summarily against a person who has disturbed the custody of its receiver, and which is usually exercised by an order for restitution upon the application of the receiver or of the plaintiff in the action, and by punishment for contempt upon refusal to comply with the order, is undoubted; but this exercise of the authority of the court to protect its own possession is not to be confounded with the exercise of jurisdiction over persons claiming adverse rights in property which has never been in the custody of the court. As the New Amsterdam National Bank has never had its day in court, the order of the court below was unauthorized, and could not support a proceeding for contempt. Parker v. Browning, 8 Paige, 388, 35 Am. Dec. 717; Albany City Bank v. Schermerhorn, 9 Paige, 372, 38 Am. Dec. 551; Searles v. Railway Co., 2 Woods, 621, Fed. Cas. No. 12,586; Thompson v. Smith, 1 Dill. 458, Fed. Cas. No. 13,977; Terrell v. Allison, 21 Wall. 289, 292, 22 L. Ed. 634; Howard v. Railway Co., 101 U. S. 837, 848, 25 L. Ed. 1081. Even if the bank had been a party to the suit, we think it would have been an erroneous exercise of judicial discretion to require it to pay over the money to the receiver. The facts alleged by the bank in opposition to the application of the receiver were practically undisputed. If they are true it had a right to retain the money, and the probability of a final decree to the contrary was too remote to justify wresting the fund from the bank pending a final decree, and possibly subjecting it to a lien for expenses. The order is reversed, with costs. Appeal of CAHILL. (Circuit Court of Appeals, Second Circuit. July 1, 1903.) No. 145. 1 TOWAGE-DESERTION OF TOW BY TUG-LIABILITY FOR LOSS. A tug, which cut loose from a dredge and two scows, which she had in tow, in the night, and deserted them, in disregard of her duty to use all reasonable efforts for their preservation, is liable for their consequent loss or damage, in the absence of clear proof that her efforts to save them would have been ineffectual. 2. ADMIRALTY-APPEAL-REVIEW OF FINDINGS OF FACT. Findings of fact by a commissioner in admiralty on evidence which is conflicting or doubtful, and which have been reconsidered on exceptions and approved by the court, will not be disturbed on appeal, unless manifestly wrong. Appeal from the District Court of the United States for the Southern District of New York. Wm. G. Choate, for appellant. W. Frothingham, for appellee J. P. Randerson. Le Roy S. Gove, for appellee Providence Washington Ins. Co. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. PER CURIAM. According to the testimony of Brainard, the pilot of the tug, he thought the dredge was going to founder, and told Cutter, the master, that he thought the best thing to be done was to "take the men off and let the dredge go on the beach"; and this was before the alleged waving of lights on board the dredge. Cutter, the master of the tug, testifies that he ordered the tug hawser cut solely because of signals from the dredge, and would not otherwise have done so. No signals had been given from the dredge, and we are satisfied the master of the tug ordered the hawser cut, not because of any supposed signals, but solely because he thought, as the pilot did, that the dredge and scows would founder, and thereby imperil his own vessel. After taking the men off the dredge, the tug put to sea and abandoned her tows. This all took place at night, about half past 8 o'clock, when the vessels were about two miles from the coast of Cape Cod. The rough weather and heavy sea may have endangered the scows, but the dredge was not in extreme danger, although some of the men on board her were apprehensive. The circumstance that the men left her 2. See Admiralty, vol. 1, Cent. Dig. § 770. in hot haste is explained by the fear and excitement created by the conduct of the navigators of the tug. Even if the circumstances had been sufficient to justify the master of the tug in cutting loose from the dredge in order to take off the men, they did not justify him in deserting her and her scows, and allowing them to be beached without any effort to save them. We are satisfied there was a reasonable chance that they could have been saved if the tug had resumed charge of them. Their owner was entitled to the benefit of the chance, and as he has been deprived of it by the conduct of the tug, in disregard of her duty to use all reasonable efforts for the preservation of her tow, the tug must respond for the consequences, in the absence of clear proof that her efforts would have been ineffectual. Upon this branch of the case we fully concur in the opinion of the court below, and do not deem it necessary to express ourselves further. The numerous exceptions to the findings upon the items of damage have required an extended examination of the proofs taken before the commissioner, to whom the cause was referred to report damages. The commissioner's findings were carefully considered and revised by the district judge, and, although a reduced allowance as respects some of the items would have been more satisfactory, we are unable to say that as finally allowed they are not sanctioned by the evidence. The losses in the nature of salvage services, and for removing the vessels and their dredging appliances to a place of repair, for the repairs made, for demurrage, and for depreciation, when repaired, from their former value, were awarded upon correct principles and upon conflicting testimony. No error of law appears. The findings of a master or commissioner will not be disturbed as to matters of fact upon which the evidence is doubtful or the inferences are uncertain; much less when his conclusions are reached upon conflicting testimony, and involve to a greater or less degree the credibility of the witnesses. When, as in this case, they have been reconsidered upon exceptions and approved upon the review, they should not be disturbed by this court, unless manifestly wrong. The decree is affirmed, with interest and costs. WEBBER et al. v. MIHILLS et al. (Circuit Court of Appeals, Eighth Circuit. July 9, 1903.) No. 1,850. 1. ASSIGNMENT OF ERRORS-FILING BEFORE APPEAL INDISPENSAble. The filing of an assignment of errors before the allowance of an appeal is indispensable under the 11th rule of the Circuit Courts of Appeals (91 Fed. vi, 32 C. C. A. lxxxviii), and the appeal will be dismissed if the assignment is not filed before its allowance. (Syllabus by the Court.) Appeal from the District Court of the United States for the Westà ern District of Arkansas. This is an appeal from the decree of the District Court sitting in bankruptcy, which dismissed a petition of the appellants, George Webber, trustee of the Mammoth Pine Lumber Company, the bankrupt, and the South Texas National Bank, a creditor of the bankrupt, to review the allowance of the claim of the trustee and executors of the estate of M. T. Jones for the payment to them of a share of the proceeds of the sale of certain lands of the bankrupt upon which they held vendor's and mortgage liens. The trustee and the executors of the estate of Jones did not present or prove their claim against the estate of the bankrupt, but they filed an intervening petition setting up their claim to the proceeds of the sale of the lands upon which they held the vendor's and mortgage liens. This intervening petition was filed in the proceeding in bankruptcy against the Mammoth Pine Lumber Company on July 20, 1901. The claim which it presented was duly allowed after notice to the creditors and the trustee, and it was paid by the trustee on October 29, 1901. On August 21, 1902, the appellants appeared and filed a petition to review the allowance of this claim. The court denied and dismissed their petition on November 19, 1902, and on that day they prayed and were allowed an appeal to this court. On November 26, 1902, they filed the only assignment of errors which appears in the case. L. A. Byrne, for appellants. W. H. Arnold, for appellees. Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges. SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court. The decree of allowance of the claim which the appellants sought to review in the District Court was rendered nearly a year before they filed their petition for that purpose, and there is no disclosure in this record of any accident or mistake which prevented an appeal from the order making that allowance or of any diligence in preparing for or prosecuting the petition for its review. The claim was paid, pursuant to the order of allowance, more than nine months before the petition was filed in the District Court, and these facts of themselves would be sufficient to prevent a reversal of the decree dismissing this petition, if that question was here for our consideration. But the fact is that the merits of this case are not within our reach because no assignment of errors was filed in the court below until more than six days after the appeal was allowed. Section 997 of the Revised Statutes [U. S. Comp. St. 1901, p. 712] makes an assignment of errors, a prayer for reversal, and a citation to the adverse party essential parts of the record upon which a review of the rulings of a trial court may be invoked in the appellate courts of the United States. When an appeal is prayed and allowed in open court the prayer for reversal and the citation may be waived. But the assignment of errors is indispensable to the perfection of the appeal. Rule 11 of this court provides that "the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed." 91 Fed. vi, 32 C. C. A. lxxxviii. Attention has been sharply called to this rule, and the announcement has been plainly made that it would be enforced, although in the earlier cases the errors assigned were carefully examined, that no injustice might result from 124 F.-5 an unexpected application of the rule. U. S. v. Goodrich, 4 C. C. A. 160, 161, 54 Fed. 21, 22; Union Pac. R. Co. v. Colorado Eastern R. Co., 4 C. C. A. 161, 54 Fed. 22; City of Lincoln v. Sun-Vapor Street Light Co. of Canton, 8 C. C. A. 253, 59 Fed. 756, 759. But in the later cases the rule has been steadily and uniformly enforced. Thus, in Frame v. Portland Gold Min. Co., 47 C. C. A. 664, 665, 108 Fed. 750, 751, a writ of error was dismissed because the assignment of errors was not filed until two days after the issue of the writ. To the same effect are Flahrity v. Railroad Co., 6 C. C. A. 167, 56 Fed. 908; Crabtree v. McCurtain, 10 C. C. A. 86, 61 Fed. 808; Lloyd v. Chapman, 35 C. C. A. 474, 93 Fed. 599, 601; Insurance Co. v. Conoley, 11 C. C. A. 116, 63 Fed. 180; Grape Creek Coal Co. v. Farmers' Loan & Trust Co., 12 C. C. A. 350, 63 Fed. 891; Van Gunden v. Iron Co., 3 C. C. A. 294, 52 Fed. 838; Railway Co. v. Reeder, 22 C. C. A. 314, 76 Fed. 550. The assignment of errors in this case was not filed until seven days after the allowance of the appeal, and the appeal must be dismissed under rule II. It is so ordered. HURLBUT v. UNITED STATES MAILING TUBE CO. 1. PATENTS-INVENTION-PAPER TUBES. The Hurlbut patent, No. 441,846, for tubes especially intended to cover paper tubes, is void, for lack of patentable invention, in view of the prior art. Appeal from the Circuit Court of the United States for the Southern District of New York. For opinion below, see 119 Fed. 188. A. Parker Smith, for appellant. W. C. Hauff, for appellee. Before WALLACE, LACOMBE, and COXE, Circuit Judges. PER CURIAM. This is an appeal by the complainant from a decree dismissing the bill in a suit brought to restrain the infringement of letters patent granted to the complainant December 2, 1890, for a paper tube. The court below dismissed the bill upon the theory that the defendant's tube was not an infringement of the patent, in view of the narrow construction which must be given to the claims. 119 Fed. 188. The patent describes a tube made of paper, and which is suitable for use as a speaking tube, as a conduit for wires, and for other purposes. The tube has a cylindrical core, or inner tube, which is formed by bending a fillet of paper of the length desired around a mandrel, so that the sides abut or somewhat overlap, and around the core one or more strips or tapes of paper are wound spirally, serving to bind the core firmly in its tube formation. When more than one wrapping is applied, the succeeding ones are wound so as to break |