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or approval of the conduct of such insolvent is to be implied. Holding such a transaction by a civil court to be a mere contract of loan, not procured by actionable fraud, would not mean that the insolvent banker had a right guarantied by the national constitution, and proof against inhibitory state legislation, to take deposits, on the pretense of solvency, from any person too negligent of his own interest to make careful and specific inquiry.
It is suggested that a banker who did not know himself to be insolvent might be convicted under this act. I do not see how the right of an insolvent banker to take money as a deposit can be grounded on his ignorance of his own insolvency, so that such right will fall within the guaranty of the fourteenth amendment touch. ing liberty or property as against inhibitory state legislation. On the other hand, cases such as Com. v. White, 11 Allen, 264, are against the proposition that what may be called positive guilty knowledge is necessary to make the criminal offense. The pretense of solvency, or, putting it in another way, the appearance or seeming to the depositor that the banker knows himself to be solvent, is the efficient cause of the deposit. A banking business, in strictness, cannot be carried on if the banker be insolvent. The assumption of solvency seems a necessary antecedent to any deposit in the usual course of business. A depositor merely in his character as depositor parts with his money, not for profit in the way of interest, but simply upon the assurance that he can have it again on demand, in portions and at times to suit his convenience or inclina. tion. From the standpoint of a depositor, the banking business is sui generis. A depositor in making a deposit does not think of himself as a lender driving a bargain in the way of interest with a borrower, or as a merchant selling on credit, or as one making a deal or contract of some sort for profit. Without inquiry and as a matter of course he assumes the solvency of his bank, leaves his money, and goes his way. The proposition that the insolvent banker who takes a deposit is discriminated against, since any other insolvent may borrow with impunity, is hardly sound. The legislature might, so far as I can see, prohibit by punitive enactment any insolvent from borrowing money, to the loss or injury of the lender, by using for that purpose the false pretense of solvency. The legislature could hardly prevent any insolvent from borrowing money when neither the false pretense of solvency nor any other false pretense is made use of. The present statute is applicable to persons en: gaged in the business of banking,-a business which, from the standpoint of one about to deposit money, seems to make on its own behalf the direct assertion of solvency.
The law here in question is applicable to any person whose conduct falls within the definition of the offense. How wide or how narrow that definition shall be is, a question for the legislature. So far as the legislative power of a state is concerned, constitutions are not grants, but limitations. So long as no constitutional limitation is invaded, the legislature may make whatever law it pleases. I am not able to say that taking money as a deposit by an insolvent banker under pretense of solvency is a right guarantied by the fourteenth amendment. A law which makes the obtaining money by false pretenses a crime would hardly be invalid on the ground that a person using the same pretenses, but failing to obtain and appropriate money or property thereby, would not be punishable. The circumstance that, by the terms of the statute in question, the repayment on demand must be lost to the depositor in order to make the of. fense, is not a valid objection. Nor as long as any person whose conduct falls within the definition of the offense is liable to the pen. alty prescribed do I see that the equal protection of the laws is denied. The entire act is entitled an "Act for the protection of bank depositors." The offense in question is created by the first section. It is a limitation on this offense that the depositor must not at the time be himself indebted to the bank. The offense is against the state. The section gives no right of any kind to, nor does it create any liability on the part of, any depositor, whether he be indebted to the bank or otherwise. But, as it seems to me, the question whether or not a criminal statute denies the equal protection of the laws is properly available to one who finds himself amenable to such statute (Budd v. State, 3 Humph. 492), and who himself, as he conceives, is thereby denied the equal protection of the laws. The penalty of the statute here in question goes without discrimination against any person whose conduct falls within the definition of the offense.
As concerns the last sentence of the section, I do not think any question can properly arise in this proceeding. The state is not obliged to make use of—and may not choose or be able to use the rule of evidence there defined. That it will be able to make out a case, or what evidence the prosecuting attorney will introduce, cannot now be known. So far as is shown here, there may have been no suspension of the banking business by this petitioner and his partner until after the 30 days, or such suspension may have occurred on the same day when the deposit alleged in the indict. ment was made. At all events, it does not appear that the rule of evidence in question has anything to do with the detention now complained of. I think the writ should be discharged, and the petitioner remanded to the custody of the sheriff; and it is so ordered.
(District Court, E. D. Virginia. January 25, 1883.) SALVAGE-COMPENSATION.
A steamer, heavily laden, suddenly sprung a leak, and quickly Alled, in the narrow channel of the James river. She was bastily abandoned by her master and crew, without casting anchor or setting lights, and settled lightly on the bottom, where she was liable to be run into by several large ocean steamers which were due to pass the following night. At her master's request, a steam yacht went to her rescue, and in the course of two or three hours towed her to a wharf. Held, that this was a salvage service, for which $600 should be awarded on a salved value of $2,400. This was a libel in rem filed by J. L. Schoolcraft against the steamer Carrie and cargo, to recover salvage. On the afternoon of December 15, 1882, the Carrie, which was coming up the James river heavily laden, bound for Petersburg, sprung a leak, and suddenly began to sink while in the vicinity of Blair's wharf. Her master and crew hurriedly left her in a small boat, and, some time later, wet, chilled, and exhausted, reached a schooner in the river. They had had no time to cast an anchor or put up anchor lights. The boat sank in the channel, grounding slightly in deep water, where she was liable to be run into by large steamers, several of which were due to pass during the night. Soon after the disaster, the yacht Mary arrived in the vicinity, and, in answer to a signal, went alongside the schooner on which the master and crew of the Carrie had taken refuge. At the master's request, she first put himself and the crew ashore at Blair's wharf, and then went to the Carrie, which she succeeded in towing to the same point in the course of two or three hours. The master then resumed control of her.
Jackson & Sands, for libelant.
HUGHES, District Judge. This is plainly a case of salvage, and a case for a liberal salvage reward. The Carrie was in a helpless condition; her own crew powerless to save her, and hopeless of doing 80. Her master called upon the owner of the Mary to undertake the rescue of his vessel, and spoke of 50 or 75 per cent. of the value raised as the probable reward. The fact that no anchor was thrown out, and no light put up, conclusively evidenced abandonment.
It can hardly be said that in a case of abandonment in a river, with the land of each shore in sight, there was no animus recuperandi. But, if this like abandonment had occurred on the high seas, the case would have been one of absolute derelict. The vessel was in imminent peril. She was likely either to sink, and to be crushed on the bottom by the powerful steamers soon to pass up and down, or, if she had continued afloat, she was liable to be collided with and sunk by the same great vessels. The mere fact that the work of saving occupied the Mary only two or three hours does not materially affect the case. In the case of The Blackwall, 10 Wall. 1, where fire engines from San Fran. cisco put out a fire on the steamer in the harbor in 30 minutes, the supreme court of the United States sanctioned an award of many thousands of dollars salvage. Really, the only open question in the case is, what shall be the amount of award? I consider the value of the Carrie after she was delivered at Blair's wharf was $2,400. I will give a decree for a fourth of this value; that is to say, for $600. As to the portion of the cargo that was saved, I will give a decree for half its net value.
1 This case has been heretofore reported in 5 Hughes, 445, and is now published in this series, so as to include therein all circuit and district court cases elsewhere reported_which have been inadvertently omitted from the Federal Reporter or the Federal Cases.
TWO HUNDRED AND SIXTEEN LOADS AND SIX HUNDRED AND
SEVENTY-EIGHT BARRELS OF FERTILIZER. 1
(District Court, E. D. Virginia. July 13, 1881.) DEMURRAGE-LIEN ON CARGO_EFFECT OF DELIVERY.
When cargo has been absolutely delivered to the consignee before serp. ice of process thereon, the lien for demurrage is lost.
This was a libel for demurrage filed by Thomas K. Jones, master of a schooner, against her cargo of fertilizer. The libel was filed on the day on which the delivery of the cargo to the consignee was completed, and process was not served thereon until the following day.
HUGHES, District Judge. There is no doubt that a cargo may be libeled for freight so long as it is on the vessel or in custody of a wharfinger or warehouseman, holding either actually or constructively for the owner of the vessel. But, when the cargo has been absolutely delivered to the consignee against whom the freight is claimed, the maritime lien is lost, and the jurisdiction of the admiralty court to enforce it is lost with it; for it is settled law that “the lien of a shipowner for freight, being but a right to retain the goods until payment of freight, is inseparably associated with the possession of the goods, and is lost by an unconditional delivery to the consignee." See the opinion of Chief Justice Taney in Bags of Linseed, 1 Black, 108. libel must be dismissed at the libelant's costs; and the clerk may check upon the fund in bank for the costs, and, after deducting these, then in favor of the master for the residue of the sum.
1 This case has been heretofore reported in 5 Hughes, 310, and is now published in this series, so as to include therein all circuit and district court cases elsewhere reported which have been inadvertently omitted from the Federal Reporter or the Federal Cases.
ABILENE V. FOLEY. (Circuit Court of Appeals, Fifth Circuit. February 25, 1897.) No. 510. In Error to the Circuit Court of the United States for the Nortbern District of Texas. T. J. Freeman, Wm. Alexander, W. H. Clark, and W. L. Hall, for plaintiff in error. W. L. McDonald, for defendant in error.
Dismissed pursuant to the twentieth rule.
ALABAMA G. 8. R. CO. V. CARROLL. (Circuit Court of Appeals, Fifth Circuit. June 7, 1897.) No. 516. In Error to the Circuit Court of the United States for the Southern Division of the Northern District of Alabama. A. G. Smith and James Weatherly, for plaintif in error. Sam. Will John and Richard L. Brooks, for defendant in error. · Reversed and remanded, with directions to dismiss for want of jurisdiction. A petition for a rehearing having been allowed, the opinion was on June 7, 1897, withdrawn by order of the court. See 28 C. C. A. 207, 84 Fed. 772.
AMERICAN CONST. CO. V. PENNSYLVANIA CO. FOR INS. ON LIVES AND GRANTING ANNUITIES. (Circuit Court of Appeals, Fifth Circuit. April 20, 1897.) No. 520. Appeal from the Circuit Court of the United States for the Southern District of Florida. H. Bisbee and C. D. Rinehart, for appellant. J. C. Cooper, for appellee.' Dismissed pursuant to the twentietb rule.
PRESIDENT, ETC., OF BANK OF KENTUCKY v. CITY OF LOUISVILLE. (Circuit Court, D. Kentucky. June 4, 1898.)
Humphrey & Davie, for complainant
TAFT, Circuit Judge. The bill filed herein presents the same questions as those already considered in the case of Bank v. Stone, 88 Fed. 383; but it relates to the taxes for 1893–94, which were certified down by the state board of valuation and assessment to the city of Louisville for collection. We do not think that the questions differ in any respect from those already considered, and must therefore hold that the city of Louisville is estopped by the former judgment between the bank of Kentucky and it, in wbich it was held by the court of appeals of Kentucky that the Bank of Kentucky had an irrevocable contract under the Hewitt act (Act Ky, May 17, 1886) for the exemption of the property and franchise of the Bank of Kentucky from any other taxation than as therein imposed; and therefore that the bank is entitled to the preliminary injunction against the collection by the city of Louisville and its agents of the taxes provided in the revenue act of November, 1892. The demurrer to the bill is overruled, and the motion for an injunction granted.