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[2,3] 1. It is to be conceded that the Dis- 4346 allowed a deduction in the amount of trict Court did not acquire jurisdiction by the bond, from which it is argued that there reason of diversity of citizenship of the par- had been no order requiring delivery of all ties; but we are of opinion that the court the assets of the bankrupt estate, and that did acquire jurisdiction, because the laws of therefore the condition of the bond has not the United States authorize the taking of been broken. But that argument ignores the bond in suit by the bankruptcy court. the prior order of November 26, 1918. It The case of Lovell v. Newman, 227 U. S. is a matter of no consequence that the trus412, 33 S. Ct. 375, 57 L. Ed. 577, is not tee has undertaken by summary order, as in point, because the property released on well as by plenary suit, to secure possession the bond in that case was not within the of the assets of the estate. He has the right custody of the bankrupt court. There the to pursue both methods, although he is enright to recover depended upon the owner- titled to have his claim satisfied but once. ship of the property by the bankrupt be- The plaintiff in error cannot use the sumfore the bankruptcy proceedings. In the mary proceeding to defeat the plenary suit, case at bar the bankrupt's property was in and vice versa. the potential custody of the bankrupt court, [9] 4. It was unnecessary to introduce a for the adjudication related back to the date copy of the bond in evidence, inasmuch as of the filing of the petition. Farmers' & the answer did not deny execution. Revised Mechanics' National Bank v. Wilkinson Statutes Texas, art. 1906; I. & G. N. Ry. Trustee (C. C. A.) 295 F. 120. We think Co. v. Tisdale, 74 Tex. 8, 11 S. W. 900, 4 this is a suit arising, under a law of the L. R. A. 545. The cases cited by the plainUnited States. American Surety Co. v. tiff in error arose under an earlier statute. Schultz, 237 U. S. 159, 35 S. Ct. 525, 59 not now in force, and hence have no apL. Ed. 892. Bankruptcy courts are invest

plication. ed with jurisdiction at law and in equity to

[10] In No. 4407 the trustee has filed appoint receivers for the preservation of

cross-assignments of error, in which he combankrupt estates. Bankruptcy Act, $ 2 (3),

plains of the action of the trial court in rebeing Comp. St. § 9586; General Orders and

fusing to direct a verdict in his favor for Forms in Bankruptcy, No. 37. The power

the full amount of the bond. There is no to require a bond in a receivership proceed

formal prayer for reversal, and upon that ing is incidental to and included within the

ground the plaintiff in error moves to dispower conferred by the bankrupt act to appoint receivers.

miss the cross-writ. The defendant in error [4-6] 2. The trustee, as successor to the

moves to amend by including a prayer for receiver, is the real beneficiary of the bond.

reversal. Permission to do that is given, and

The DisAlthough the bond is made payable to the the motion to dismiss is denied. 'United States, it is so made for the benefit trict Court found as a fact, and it is unof petitioning creditors. The trustee rep- disputed, that the bankrupt failed to deliver resents the creditors, and has the power to to the trustee an amount of money received enforce their rights. In Texas the real bene- by it during the period covered by the bond ficiary can bring suit. Morris & Cummings in excess of the amount therein stipulated. v. Schooner Leona, 62 Tex. 35. The form of It results from what we have already said the remedy is governed by the lex fori. that in our opinion the court erred in deWillard v. Wood, 135 U. S. 309, 10 S. Ct. ducting $5,290 received as salary by the 831, 34 L. Ed. 210. The cases relied on by plaintiff in error from the bankrupt. We the plaintiff in error are not in conflict with are of opinion, also, that it was error to dethis view. They merely hold that a suit duct the other expenses incurred after the may be brought by the obligee, and not that petition in bankruptcy was filed. The bond the real beneficiary is precluded from bring- sued on required the bankrupt to deliver to ing the suit in his own name.

the receiver all money and property receiv. [7,8] 3. Upon a review of the referee's ed pending the stay of receivership proceedorder appointing a receiver, the District ings. Aside from the terms of the bond, it Judge approved and confirmed it, and by was plaintiff in error's duty to surrender doing so required the receiver to take im- whatever funds he had in his possession, mediate possession of all the assets of the and to submit any claim for services renbankrupt. Immediate compliance with this dered after the petition in bankruptcy was order was avoided by the giving of a super- filed to the bankrupt court, where they could sedeas bond pending appeal to this court. be considered on their merits in the usual It is true that another District Judge in No. and orderly way as expenses incurred in the

3 F.(20) 875 preservation of the bankrupt estate. Bank Worts, Tex., on the brief), for defendant v. Wilkinson (C. C. A.) 295 F. 120.

in error and plaintiff in error on the crossIn No. 4346 the petition to superintend writ. and revise is granted, with directions for

Before WALKER and BRYAN, Circuit further proceedings consistent with this Judges, and DAWKINS, District Judge. opinion. In No. 4406 the plaintiff in error takes

BRYAN, Circuit Judge. This is a suit nothing. The judgment is reversed on the cross-writ of error in No. 4407, with direc- by the trustee in bankruptcy of the Walktions to the District Court to enter judgment setts Bonding & Insurance Company and

er Grain Company against the Massachufor $25,000, the full amount of the bond, J. L. Walker, as sureties upon a bond for together with legal interest, in favor of the trustee in bankruptcy.'

$40,000, required as a supersedeas pending

á petition to this court to superintend and Ec

revise an order of the District Court, ap. proving and confirming the appointment by

the referee of a receiver of the assets of the MASSACHUSETTS BONDING & INS. co. Walker Grain Company. The condition of et al. V. WILKINSON.

the bond was that the grain company, in WILKINSON V. MASSACHUSETTS BOND. the event the relief sought should be denied, ING & INS. CO. et al.

would deliver to the receiver or to the trus(Circuit Court of Appeals, Fifth Circuit.

tee in bankruptcy all the property and asJanuary 24, 1925.)

sets finally adjudged to belong to it. The

order of the District Court was sustained No. 4434.

by this court. Walker Grain Co. v. Gregg Bankruptcy Om 113-16 action on bond con

Grain Co., 260 F. 1022, 171 C. C. A. 669. ditioned on delivery of all assets of bankrupt,

At the close of the evidence, upon mocrediting defendant with salary and expenses tions by each of the parties plaintiff and deheld error.

In suit on bond, required as supersedeas fendant, for an instructed verdict, the court pending petition to superintend and revise or- found that the bankrupt had collected, subder confirming appointment of receiver in bank. sequently to the date of the bond, the sum ruptcy, and conditioned on delivery to receiver of $10,193.61, from which the court deductor trustee of all property and assets finally adjudged to belong to it, it was error to allow ed the sum of $4,367.46, on account of salacredit for salary of bankrupt's president, clerks, ries to Walker, clerks, and employees, and and employees, and expenses for preservation of necessary and reasonable expenses for of bankrupt estate.

the preservation of the bankrupt estate, and In Error and Cross-Error to the District thereupon directed a verdict for $5,826.15, Court of the United States for the Northern for which amount judgment was entered.

In denying 'a motion for new trial, the District of Texas; William H. Atwell,

court required the trustee to enter a reJudge.

mittitur of $1,000, because of an error in Action by W. W. Wilkinson, trustee of not allowing that additional amount on acthe estate of Walker Grain Company, bank- count of expenses incurred in the conduct rupt, against the Massachusetts Bonding & of the bankrupt's business. The order of Insurance Company and J. L. Walker.

the court provided that the entry of the reJudgment for plaintiff, defendants bring er

mittitur should be without prejudice to the ror, and plaintiff files cross-writ of error.

trustee's rights. It is undisputed that the Judgment reversed on cross-writ of error, Walker Grain Company collected and failed with directions.

to turn over to the trustee the amount found See, also, 260 F. 1022, 171 C. C. A. 669; by the court. 292 F. 395; 294 F. 939, 951; 3 F.(20)

The questions presented are in substance 867, 872.

the same as those in the case of J. L. WalkClay Cooke and J. A. Templeton, both of er v. W. W. Wilkinson, Trustee, 3 F.(20) Fort Worth, Tex. (W. E. Spell, of Waco, 872, this day decided, and, following the rulTex., and G. A. Stultz, of Wichita, Kan., ings there made, the plaintiff in error takes on the brief), for plaintiff in error and de- nothing, and the judgment is reversed on the fendants in error on the cross-writ.

cross-writ of error, with directions to the Stanley Boykin and H. C. Ray, both of District Court to enter judgment for $10,Fort Worth, Tex. (Geo. M. Conner and 193.61 in favor of the trustee in bankCapps, Cantey, Hanger & Short, all of Fort ruptcy.

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art den 26 n 603 69 L Ed.809,

45 Surat. 463.

FARMERS' & MECHANICS' NAT. BANK within the meaning of the Railroad Law of
OF FORT WORTH, Tex., Petitioner, v. W. Porto Rico of March 9, 1911, § 12, requiring
W. WILKINSON, Trustee, Respondent. railroads to "construct and maintain chains,

gates or other suitable protective devices at (Circuit Court of Appeals, Fifth Circuit.

all crossings of insular public roads." January 24, 1925.)

3. Railroads 308–Violation of statute not No. 4378.

negligence per se, but evidence of negligence.

Under the rule in the federal courts, which Petition to Superintend and Revise from is one of general law, failure of a railroad comthe District Court of the United States for pany to comply with a statutory regulation is the Northern District of Texas: William H. not negligence per se, or as matter of law, but

only evidence from which negligence may be Atwell, Judge.

found as a fact. J. A. Templeton, of Fort Worth, Tex., G. 4. Railroads 309–Measure of care in rugA. Stultz, of Wichita, Kan., Clay Cooke, of ning special train at crossing stated. Fort Worth, Tex., and W. E. Spell, of Wa In an action for injury to plaintiff, who was oo, Tex., for petitioner.

struck at a highway crossing by a special train

on defendant's railroad, an instruction that, as Stanley Boykin and H. C. Ray, both of the train was not scheduled, defendant was Fort Worth, Tex. (C. M. Conner and required to use the utmost diligence and all Capps. Cantey. Hanger & Short, all of Fort means to protect travelers on the road, held to

place too great a burden of care on defendant, Worth, Tex., and Orestes Mitchell, of St. the fact that the train was a special one being Joseph, Mo., on the brief), for respondent. a circumstance to be considered by the jury Before WALKER and BRYAN, Circuit W

BRYAN Cirovit with other facts in determining whether it er

ercised reasonable care. Judges, and DAWKINS, District Judge.

5. Negligence en 122(5)–Presumption from in. BRYAN, Circuit Judge. Applying the

he stinct of self-preservation applicable only in

absence of evidence. decision this day announced in the case of

In the federal courts the burden of proving W. W. Wilkinson, Trustee, v. J. L. Walker contributory negligence rests on defendant, and (No. 4346) 3 F.(20) 872, the petition to the presumption arising from the natural insuperintend and revise in this case is de- stinct of self-preservation is to be indulged in

plaintiff's favor only in the entire absence of nied.

evidence as to his conduct at the time of the
accident.

Anderson, Circuit Judge, dissenting.
AMERICAN R. CO. OF PORTO RICO V.

In Error to the District Court of the
LOPEZ.

United States for the District of Porto (Circuit Court of Appeals, First Circuit. De.

Rico; Arthur F. Odlin, Judge.
cember 5, 1924. Rehearing Denied
January 2, 1925.)

Action at law by Carlos M. Ramirez

Lopez against the American Railroad ComNo. 1675.

pany of Porto Rico. Judgment for plain1. Exceptions, bill of Om32(3)-Acting judge tiff, and defendant brings error. Judgof District Court for Porto Rico may sign

ment vacated, verdict set aside, and case bill of exceptions in cause tried before regu

remanded. lar judge.

Under Organic Act Porto Rico March 2, Francis H. Dexter, of San Juan, Porto 1917, § 41 (Comp. St. 1918, Comp. St. Ann. Rico, for plaintiff in error. Supp. 1919, 8 3803qq), authorizing the President to designate one of the judges of the

Jose A. Poventud, of New York City, Supreme Court of Porto Rico to act as judge for defendant in error. of the District Court of the United States for

Before BINGHAM, JOHNSON, and ANPorto Rico during the absence or disability of the regular judge, such acting judge held to DERSON, Circuit Judges. have authority to sign a bill of exceptions in a cause tried before the regular judge.

BINGHAM, Circuit Judge. This is an 2. Railroads On 307 (4)–Company held ro action to recover damages for injuries sus

quired by statute to maintain gates at cross. tained on the 24th of June, 1922, in a colings; "insular roads."

lision between an automobile and the deUnder Pol. Code Porto Rico, $ 397, defining

fendant's train at a highway crossing. The "insular roads" as including such highways or roads as are included in the general plan of accident occurred while the plaintiff was roads to be built and maintained by insular crossing the defendant's track at grade. funds, a part of a municipal road taken over by He was injured and the automobile delegislative act as a part of the insular system, and which was then being maintained by the stroyed. There was a trial by jury in the Interior Department, held an "insular road,” federal District Court for Porto Rico in

3 F.(22) 876 April and May, 1923, and on May 2 a ver- out merit, as the bill was allowed at the dict was returned for the plaintiff in the term at which judgment was entered, namesum of $2,250. .

ly, the May term, 1923. The second ground By the Organic Act for Porto Rico of of objection is likewise without merit. By March 2, 1917, section 42 (39 Stat. at an act of Congress approved January 7, Large, p. 966 [Comp. St. 1918, Comp. St. 1913 (37 Stat, at Large, p. 648, c. 6 [Comp. Ann. Supp. 1919, § 3803r]), the regular St. § 3787]), it was provided : terms of the United States District Court “That whenever the United States Disfor. Porto Rico open the first Monday in trict Judge of the district of Porto Rico November at San Juan, the second Monday shall be absent from the said district, and in February at Ponce, and the first Mon- that fact shall be made to appear by the day in May at San Juan. It was at the certificate in writing of the United States February term, 1923, at Ponce, that the attorney or marshal of that district, filed in trial was had and the verdict returned. the office of the clerk of the United States On the day the verdict was returned the de District Court for said district, or when for fendant obtained leave to file a motion for any reason the said judge shall or may be a new trial, and at the May term, begin- disqualified or unable to act as such in any ning May 7, 1923, such motion was filed, cause pending in the District Court of the and after hearing was denied June 4, 1923, United States for Porto Rico, and that fact on which day judgment was entered for the shall be made to appear either by proper plaintiff. On June 5, 1923, the defendant order entered in the record of said cause by filed its petition for a writ of error and as- the regular District Judge, or by the certifisignments of error, and on that day the cate in writing of the United States attorpresent writ of error from this court was ney or marshal of that district filed in the sued out, which was attested by the Chief office of the clerk of the United States DisJustice of the Supreme Court and approved trict Court for said district, the Governor by the District Judge who tried the case, of Porto Rico may, by writing filed in the but was not attested by either the clerk of said clerk's office, designate a justice of the the District Court or the clerk of this court. Supreme Court of Porto Rico either as Service of the writ of error was accepted by temporary judge of said District Court or counsel for the plaintiff June 8, and a su- as special judge thereof; and the temporapersedeas bond was filed, approved by the ry judge so designated as aforesaid shall District Judge. On June 16, 1923, by have and may exercise within said district, agreement of counsel, approved by an order during the absence of the regular District of the court, the time for presentation of Judge, all the power of every kind by law the bill of exceptions was extended until vested in said District Judge, and after the July 30, 1923, which time was thereafter return of said District Judge to said disextended to August 31, 1923. On August trict, shall continue to have and exercise 30, 1923, the bill of exceptions herein re- said powers with respect to any cause, the lied upon was presented to and allowed by trial of which shall have been commenced Carlos Franco Soto, the acting judge of before him or which shall have been subthe District Court, the regular District mitted to him for decision prior to the reJudge, Arthur F. Odlin, then being absent turn of said District Judge; and the spefrom the Island

cial judge so designated as aforesaid shall The plaintiff has filed a motion asking have and may exercise within said district that the bill of exceptions be stricken from all the power of every kind by law vested the record (1) apparently asserting that it in said District Judge with respect to any was allowed at a term subsequent to that at cause named in the writing by the Governwhich judgment was entered, and (2) that or, filed as aforesaid, designating the said the acting judge was without authority to special judge as aforesaid: Provided, that allow the bill of exceptions; that it could no additional compensation shall be paid to only be allowed by the judge who tried the either such temporary District Judge or cause. He also has moved to dismiss the special District Judge for services rendered writ of error, because it was not attested by pursuant to such designation." the clerk of the District Court or of this And by the Organic Act for Porto Rico court.

of March 2, 1917, section 41 (39 Stat. at [1] Proceeding to consider the questions Large, p. 966 [Comp. St. 1918, Comp. St. in the order above enumerated, it is evident Ann. Supp. 1919, § 3803q9]), Congress that the first ground of objection to the provided : allowance of the bill of exceptions is with- • • In case of vacancy or of the death, absence, or other legal disability on provided, the defect has not prejudiced, and the part of the judge of the said District the amendment will not injure, the defendCourt of the United States for Porto Rico, ant in error.” Comp. St. § 1664. the President of the United States is au- The power conferred upon the Supreme thorized to designate one of the judges of Court by this section is also conferred upon the Supreme Court of Porto Rico to dis- this court with respect to writs of error ischarge the duties of judge of said court suing from it. Cotter v. Alabama G. S. R. until such absence or disability shall be re Co., 61 F. 747, 748, 10 C. C. A. 35. The moved, and thereupon such judge so desig- omission complained of being a defect in nated for said service shall be fully author- form within the meaning of section 1005, it ized and empowered to perform the duties may be amended. of said office during such absence or disa. We proceed to consider the case on its bility of such regular judge, and to sign all merits. necessary papers and records as the acting In its assignments of error the defendant judge of said court without extra compen- complains that the court below erred in resation."

fusing to direct a verdict in its favor, in It is admitted by the plaintiff that Judge giving certain instructions requested by the Odlin, the regular District Judge, was ab- plaintiff, in refusing certain instructions sent from Porto Rico at the time of the requested by the defendant, in other inallowance of the bill of exceptions and it structions given to the jury, and in the exis not contended that Hon. Carlos Franco clusion of certain evidence. Soto was not at that time one of the judges The plaintiff's evidence tended to prove of the Supreme Court of Porto Rico, or that the defendant operated a railroad for that he was not designated by the President hire in Porto Rico, a portion of which exof the United States to perform the duties tended from the town of Lajas to the town of the judge of said court during the ab- of Boqueron; that a public highway besence of the regular judge. Under the cir- ginning at San Juan ran past the defendcumstances the bill of exceptions was prop- ant's railroad station in the town of Lajas erly allowed. See, on this subject, Guard- and crossed at grade that portion of the ian Assurance Co. v. Quintana, 227 U. S. defendant's railroad extending from Lajas 100, 33 S. Ct. 236, 57 L. Ed. 437, argued to Boqueron at a point 600 meters from the before the Supreme Court January 6, 1913, Lajas railroad station; that said highway, and decided January 27, 1913, where in the prior to 1916, was a municipal or town opinion of the court the Act of January road (extending from Lajas towards the 7, 1913, is referred to.

west coast of the island), but that in 1916 · The motion to dismiss the writ of error the Legislature of Porto Rico authorized an must be denied. It is true the writ should issue of bonds by the people of Porto Rico have been attested by the clerk of the Dis to the amount of $2,000,000, for the contrict Court or by the clerk of this court struction of roads and bridges (Law No. from which the writ issued. Revised Stat- 71, p. 136, Laws of 1916), in which the utes U. S. § 1004 (Comp. St. § 1663). portion of the road here in question was And prior to the enactment of section 1005 designated as one of the roads to be built, of the Revised Statutes in 1872 this omis- maintained and controlled by the Departsion would probably have been a fatal ob- ment of the Interior of the Island, namely, jection to its validity and to the exercise of from Lajas to the town of Guanica, a disany jurisdiction over the case by this court. tance of 512 kilometers, and from there to But section 1005 provides :

La Parguera; that at the time of the acci"The Supreme Court may, at any time, dent in question the Department of the Inin its discretion and upon such terms as it terior had constructed and was maintaining may deem just, allow an amendment of a said highway beyond the crossing in the writ of error, when there is a mistake in town of Lajas, where the accident occurred, the teste of the writ, or a seal to the writ up to within one kilometer of Guanica, and is wanting, or when the writ is made re- that the portion so constructed and mainturnable on a day other than the day of the tained was opened and being used for pubcommencement of the term next ensuing the lic travel; that on the date in question the issue of the writ, or when the statement of plaintiff was driving his car northerly on the title of the action or parties thereto in this highway towards Lajas and the dethe writ is defective, if the defect can be fendant's train was coming southerly from remedied by reference to the accompanying the station of Lajas towards the crossing; record, and in all other particulars of form: that as the highway approached the cross

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