ADAMS, District Judge. The first of the above entitled actions, Heller and Hirsh against Pendleton, was brought to recover damages for an alleged breach of a charter of the schooner M. V. B. Chase, dated November 16, 1904. The contract was as follows:

"This Charter Party, made and concluded upon in the City of New York, the 16th day of November 1904 Between Pendleton Bros, agents for owners, of the Schr. 'M. V. B. Chase,' of New York of the burthen of 380 Tons or thereabouts, register measurement, now lying in the harbor of New Haven, Conn. of the first part, and Mess. Heller, Hirsch & Co. of the second part, witnesseth, that the said party of the first part agrees in the freighting and chartering of the whole of the said vessel, * * * unto said party of the second part, for the voyage from South Lyme, Conn. to Savannah, Ga. Sufficient water guaranteed at loading place or charterers to move vessel to' a place where there is sufficient water and lighter cargo at their expense. Vessel drawing ab't 9 ft. light & abt 16 ft. loaded with full cargo coal on the terms following. The said vessel shall be tight, staunch, strong and in every way fitted for such a voyage, and receive on board during the aforesaid voyage the merchandise hereinafter mentioned. * The said party of the second part doth engage to provide and furnish to the said vessel a cargo of acid scrap, in bulk, estimated between 6/700 tons the bills of lading to be signed without prejudice to this Charter, and to pay to said party of the first part, or agent, for the use of said vessel during the voyage aforesaid, One dollar & twenty-five cents ($1.25) per gross ton delivered and charterers to load, trim and discharge cargo free of expense to vessel and to tow vessel from New Haven to loading place or places and when loaded to sea. It is agreed that the lay days for loading and discharging shall be as follows (if not sooner despatched) commencing 24 hrs from the time the vessel is ready to receive or discharge cargo. Dispatch for loading and discharging to be One hundred (100) tons per day. A delay at one place to be offset by quicker dispatch at the other places and that for each and every day's detention by default of the said party of the second part, or agent Forty $40.00 dollars per day, day by day, shall be paid by said party of the second part or agent, to the said party of the first part, or agent. The cargo or cargoes to be received and delivered alongside, within reach of the vessels tackles. It is understood that the vessel is now at New Haven discharging lumber and to proceed under this charter after completing her present voyage.

It appears that the schooner prior to reaching New Haven was on a voyage from the south, and at the end of it she was in a condition requiring some repairs. These were made and cost $320.62. They caused some delay in her reporting to the charterers. By reason of this they claim that though they did not insist upon a right to cancel the contract they were entitled to damages.

The law in this connection is expressed in the (2d Ed.) Amer. & Eng. Ency. of Law, vol. 7, p. 206, as follows:

"When there is no express stipulation in the contract of affreightment as to the time at which the vessel shall begin and complete her voyage, there is an implied obligation that the vessel shall sail without unnecessary delay and proceed with all reasonable dispatch to her destination, and for any injury caused by an unreasonable or unnecessary delay the shipowner is liable."

It is provided in the contract that the vessel "shall be tight, staunch, strong and in every way fitted for such a voyage." This did not leave any margin for the vessel's repairs at the termination of the discharge, yet she was not then in a condition for delivery and some delay ensued before she was fitted for service and the libellants claim that they were damaged thereby, in being obliged to incur extra expense in

loading the cargo, lightering the same to the place where the schooner was finally loaded and further sustained a loss in interest on the value of the cargo during the time of delay, amounting to the sum of $1,600. South Lyme is situated upon an open roadstead and vessels of the size of the Chase when loading to the draft provided for in the contract, are obliged to leave the wharf and either take the goods in from a lighter while lying in the roadstead or proceed to some port in the vicinity. When the Chase went to the wharf, December 16th, she soon took ground and the master declined to remain there, whereupon the libellants' chartered steam lighter, upon the master's request, towed her to New London, where she was finally loaded. It is said, with apparent truth, that loading vessels in such a roadstead, becomes more dangerous and difficult as the season advances, hence the lightering became necessary through the vessel's default. I think this claim is fairly well sustained by the testimony and that the libellants are entitled to succeed. Hence there will be a decree in their favor upon their libel, with an order of reference.

The action of Pendleton et al. against the libellants for demurrage depends to some extent upon the result of the commissioner's finding in the first action and he will consider it upon the merits and make such report thereon, both with respect thereto and the damages, as the ascertained facts may require.

THE CHARLES TIBERGHIEN,

(District Court, S. D. New York. September 28, 1906.)

ADMIRALTY-COSTS-PARTY BROUGHT IN BY PETITION.

The claimant of a libeled vessel, who for his own protection brings in a third party by petition under or by analogy to admiralty rule 59, is liable for the taxable costs and expenses of such new party in defending, where upon a hearing both the libel and petition are dismissed, and is not entitled to have such costs taxed to the libelant.

In Admiralty. On appeal from taxation of costs.
See 147 Fed. 307.

Wing, Putnam & Burlingham, for Arnhold, Karberg & Co.
Convers & Kirlin, for the Charles Tiberghien.

ADAMS, District Judge. This action was brought against the steamship Charles Tiberghien by Arnhold, Karberg & Company to recover the damages sustained through the loss of certain goods shipped at New York for the East. The steamship brought in the charterer, which probably would have been liable, if it had been decided that the libellants were entitled to recover, but the trial resulted in a decision that the goods alleged to have been lost were actually delivered to the libellants and both the libel and petition were dismissed. Thereupon the charterer taxed its costs against the steamship and the latter sought to tax the same against the libellants. The clerk rejected this claim, whereupon the steamship appealed.

The question is whether an unsuccessful libellant should be held responsible for the costs incidental to the bringing in of a third party by the claimant of a vessel.

The practice has uniformly been in this district to hold the party who brings in a third one, liable for the latter's costs where there is a dismissal of the petition. This is based on sound reasoning, inasmuch as the third party is brought in by and for the protection of the party invoking the remedy, under or by analogy to the 59th Rule. While there is much in the position of parties under some circumstances, to warrant the allowance of charterer's costs to the claimant of the vessel and it seems to be the practice in other districts (The Maurice, et al. [D. C.] 130 Fed. 634), it is a well established practice here to hold the original defending party liable to the third party when brought in by it, for the taxable expenses of defending the action, and I fail to see any reason to justify the charging of such expenses to the original libellant upon a dismissal of the libel and petition. If the libellant does not wish to run the risk of bringing the third part into the action and prefers to rely upon the original defendant, it does not seem just that he should be called upon to pay the expenses incurred when the third party is brought in for the protection of the second. Costs are always in the discretion of the court and in some instances it might be proper to afford the relief here sought, but such discretion should not be exercised to impose the costs upon a libellant when the third party is brought in for the benefit of the second, whose defense could have been established, under the decision in this case, without the presence of the charterer as a third party. The taxation is confirmed.

MEMORANDUM DECISIONS.

AMERICAN NEWS CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. November 16, 1906.) No. 77. Appeal from the Circuit Court of the United States for the Southern District of New York. For opinion below, see 142 Fed. 786. A. H. Washburn, for appellant. Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. Affirmed in open court.

AUTOMATIC SWITCH CO. OF BALTIMORE CITY v. CUTLER-HAMMER MFG. CO. (Circuit Court of Appeals, Second Circuit. October 15, 1906.) No. 118. Appeal from the Circuit Court of the United States for the Southern District of New York. For former opinion, see 147 Fed. 250. Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. The motion to amend the mandate in this case is granted, and the mandate will be recalled and amended, so as to authorize the Circuit

Court to entertain a motion to permit the Automatic Switch Company, incorporated under the laws of the state of New York, to bring its original bill in the nature of a supplemental bill, in order to revive the suit as assignee of the original complainant therein.

GASTONIA COTTON MFG. CO. v. W. L. WELLS CO. (Circuit Court of Appeals, Fourth Circuit. November 8, 1906.) No. 469. In Error to the Circuit Court of the United States for the Western District of North Carolina. O. F. Mason, A. Burwell, and Edwin T. Cansler, for plaintiff in error. Murray F. Smith, J. Hirsh, and C. W. Tillett, for defendant in error. Before GOFF and PRITCHARD, Circuit Judges, and WADDILL, District Judge.

GOFF, Circuit Judge. This case was remanded to this court by the Supreme Court of the United States, with directions to set aside the judgment theretofore rendered in this cause, and to proceed further touching the merits as may be consistent with law and with the opinion of said court. 198 U. S. 177, 25 Sup. Ct. 640, 49 L. Ed. 1003. For the proceedings heretofore had in this court concerning this case, see 128 Fed. 369, 63 C. C. A. 111. For the opinion of the court below, see 118 Fed. 190, in which the case is most fully and clearly stated. We consider it unnecessary to again set forth the facts involved in this litigation. The only question remaining for this court to dispose of is the action of the court below in directing a verdict for the appellee. The plaintiff in error contends that said court erred in withdrawing the consideration of the case from the jury and directing a verdict for the plaintiff below. The insistence is that the evidence more than reasonably tended to establish the plea of payment, and that the jury should have been permitted to pass upon it. The plaintiff in error claims that before the suit was instituted it paid $50,000 of its indebtedness to defendant in error, by and through one John F. Love, the secretary and treasurer of the two companies the Gastonia Cotton Manufacturing Company and the Avon Mills. Such payment is said to have been made to a corporation known as the "Loray Mills," for stock in that mill subscribed for by the W. L. Wells Company, acting by and through W. L. Wells. The transaction referred to is fully described by Judge Boyd in his opinion. Plaintiff in error claims the evidence shows that, acting through Love, it, under the direction of said W. L. Wells, paid at one time $10,000 of its indebtedness to defendant in error, by applying that sum on the purchase of the stock so subscribed, and that at another time it applied the sum of $40,000 for like purposes. So far as the last-mentioned sum is concerned, there is no evidence that it was so applied with the knowledge of, or by the authority of, the W. L. Wells Company. In fact the testimony relating to that transaction tends to prove that what took place between Love and W. L. Wells was carefully concealed from the W. L. Wells Company, and there is no evidence from which the ratification of that company concerning said matter can be inferred. The view of the court below regarding it has our approval. The claim for credit so far as the item of $10,000 is concerned is quite different; for the testimony tends to show that Love gave the W. L. Wells Company notice in August, 1900, that $10,000 due it for cotton sold during the season of 1899-1900 had been applied to the payment of Loray stock; that John T. Wells admitted that such notice was received and filed among the papers of the company, and that from the date of such receipt until in August, 1901, no demand was made by him, or by any one else, for the W. L. Wells Company, upon the defendants below for said amount; that thereafter, in December, 1900, a settlement was made by defendant below for all cotton shipped it to that date, invoices of which were marked paid by the W. L. Wells Company; that from December 18, 1900, to January 31, 1901, the W. L. Wells Company made several demands upon defendant below for payments on account of cotton shipped in the months of November and December, 1900, without reference to former shipments. Therefore, so far as the item of $10,000, is concerned, there was testimony strongly tending to support the contention of the defendants below, and it should, we think, have been submitted to the jury. This error will necessitate the reversal of the judgment

rendered, and the granting of a new trial, unless the defendant in error will enter in the court below a remittitur covering the said claim for credit of $10,000.

It appears by the record that the court below, with the consent of parties, consolidated this case with the case of the same plaintiff against the Avon Mills, for the purpose of more conveniently trying the issue before the jury; it being provided in the court's order that a separate verdict and judgment should be entered in each case. It is further disclosed that, after the trial had been concluded, it was stipulated by the parties that this writ of error should be prosecuted, with the understanding that the judgment in the Avon Mills Case should abide the decision of the appellate court concerning the questions raised by the record now before us. We conclude that this case shall be remanded to the court below, with direction to set aside the judgment complained of, also the verdict, and award a new trial, unless the defendant in error files, within 20 days after the mandate of this court shall have reached the court below, a remittitur as to said sum of $10,000, apportioned as follows: $5,901.38, to be credited as of June 9, 1902, on the judgment rendered in this case, and $4,098.62, as of said date, on the judgment against the Avon Mills. In case said remittitur is filed, then the judgment rendered below will stand affirmed. If it is not so filed, then the court below will enter an order setting aside said judgment and awarding a venire facias de novo. Modified and affirmed.

J. A. SCRIVEN CO. v. GIRARD CO. (Circuit Court of Appeals, Second Circuit. November 19, 1906.) No. 23. Appeal from the Circuit Court of the United States for the Southern District of New York. On appeal from an order of the Circuit Court for the Southern District of New York, dated October 2, 1905, granting an injunction pendente lite. For opinion below, see 140 Fed. 794. Louis Marshall, for appellant. A. von Briesen, for appellee. Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. Upon full consideration of the facts appearing in the record we are of the opinion that the order of the Circuit Court should be amended so as to read as follows: "Ordered, that until the further order of this court the said defendant Girard Company, its officers, directors, trustees, managers, servants, agents, attorneys and workmen, and each and every of them, be, and they hereby are, restrained and enjoined from directly or indirectly making use of the words "Elastic Seam" or "Stretchiseam" in the construction, manufacture, sale, delivery, working, operation or use, offering for sale, or advertising men's drawers with a longitudinal yellow strip down the sides, or down the sides and back, of said drawers. And it is further ordered, that the said defendant Girard Company, its officers, directors, trustees, managers, servants, agents, attorneys, and workmen, and each and every of them, be, and they are hereby, restrained and enjoined from using said words "Elastic Sean" or "Stretchiseam" in connection with men's drawers containing strips of elastic material, white, gray, or other color, unless accompanied by a statement conspicuously, clearly, and unmistakably specifying that such drawers are the product of the Girard Company, and are not the product of the Scriven Company." The order, as so modified, is affirmed.

KESSLER et al. v. ENSLEY LAND CO. et al. (Circuit Court of Appeals, Fifth Circuit. December 13, 1906.) No. 1,556. Appeal from the Circuit Court of the United States for the Northern District of Alabama. For opinion below, see 141 Fed. 130. J. A. W. Smith, Wm. A. Gunter, and Thomas M. Steeger, for appellants. Jno. B. Knox and E. J. Smyer, for appellees. Before PARDEE and SHELBY, Circuit Judges, and MEEK, District Judge.

PER CURIAM. The matters complained of in the bill were intra vires the Ensley Land Company, and as the record shows that a majority of the directors and stockholders, at the time of bringing the suit, were not in