CANAL & BANKING CO. fl. REYNOLDS.
the second and third counts are under this section. It is shown by the testimony that the :Missouri Pacific Railway Company's proportion of the alleged through rate from Chicago to Hepler on sugar is 34 cents per 100 pounds, and that its local rate on sugar from Hannibal to Hepler is 46 cents per 100 pounds. Now, conceding that some difference hetween the local rate and the Missouri Pacific Railway Company's proportion of the through rate is permissible, owing to the different conditons affecting the two shipments, the question that I submit to you underthe second and third counts is whether the difference shown in this case between the two rates of 12 cents per 100 pounds is, under all the circumstances of the case, a reasonable difference, or an undue and unreasonable difference, not justified by the different circumstances under which through shipments from Chicago and local shipments from Hannibal are made. If you find that the difference in rate of 12 cents per 100 pounds is an undue and unreasonable difference, and, as before explained, that defendant, as agent of the Missouri Pacific Railway Company, knowingly and willfully gave the Chicago, Burlington & Quincy Railroad the advantage of such difference in the shipment of the two barrels of sugar mentioned in the indictment, then you may return a verdict of guilty on the second and third counts, although you acquit on the first count. If, on the other hand, you find that the difference in the rate now in question is neither undue nor unreasonable, considering all the circumstances and conditions affecting local as compared with through shipments, you will render a verdict of acquittal on the second and third counts. In determining the last question submitted to you, as to the reasonableness or unreasonableness of the difference between the local rate and the Missouri Pacific Railway Company's proportion of the through rate, I give you full liberty to consider all the facts, circumstances, and reasons adduced by the various witnesses in justification of the difference shown, and I ask you to consider the same carefully and fairly without any prejudice or bias whatsoever.
NEW ORLEANS CANAL
et al. ".
(Circuit Court. E.
n. A rkansa, w:
July 31, 1889.)
EXECUTORS AND ADMINISTRATORS-STATUTE OF NOll<-CLAIM.
Creditors' right of action against the administrator of their deceased debtor accrues from the time the administrator's final account showing assets is settled and approved, notwithstanding appeals are taken from the decree; and on the snbsequent death of the administrator's surety their claims are barred by the Arkansas statute of non-claim unless presented against his estate within two years thereafter, presented a claim on behalf of that estate against the estate of the administrator's surety, amounts to nothing, ashe had no claim to the proceeds of assets already administered. -
2. SA:\IE-ADMINISTRATOR DE BONIS NON. The fact that an administrator d. b. n. of the estate of the original debtor
,' . The administrator. in 1869. reported a certain sum as the proceeds of a sale,,of .property of the estate. and the court by an order of record. directed his 'attorney not to turn the money over to the administrator, but to keep it subject to the order of the court; but on the administrator's final settlement in 1873. the amount was charged and 'accounted for as received by him. Held, that a suit. brought in 1886 by creditors of the estate against the attorney, washarred on the ground of laches.
In Equity. On final hearing. Clark & Williams and W. B. Street, for complainants. D. H. Reynolds, for defendants. BREWER,J. This case is now 'submitted on pleadhlgs and proofs. The facts necessary for the determination of the questions presented are" briefly, these: Francis Griffin died November 6, 1865. Edward P. Johnson was appointed administrator January 6, 1866. Lycurgus L. Johnson and Cyrus R. Johnson were sureties on his bond. Complainants; are creditors of that estate. Their claims were probated July 23,1866, and April 23, 1867. The defendants are D. H. Reynolds individually and as trustee, and the widow and heirs of Lycurgus L. Johnson, the surety, now deceased. The suit was brought February 11, 1886. The administrator,Edward P. Johnson, died in April, 1872, and in May, 1872,D. H. Reynolds, his counsel, was appointed his administrator. In 1876,Lycurgus L. Johnson, the surety, also died, and J. M. \Vorthington and T. Johnson were appointed administrators on August 30, 1876; In September, 1873, the final account ofE. P ..Johnson as administrator of Francis Griffin was settled and approved by the circuit court, a court having jurisdiction of estates, and a balance found due the estate. 'Exceptions were taken to this settlement, and appeals taken to the supreme court, and the litigation continued until April 17 ,1883, when the account wasfillally settled in the circuit court. An appeal was again taken to the supreme court, but that appeal was not prosecuted, and the creditors had a transcript filed, and the appeal dismissed in the supreme court on the 21st c1ayof March, 1885. Complainants, as creditors of the estate of Francis Griffin, seek to recover the amount found due the estate upon the final settlement of the accounts, ancI the defenses are the statutes of limitation. The statute of non-claim of this state bars all claims against an estate unless presented within two years. ' Noticing, first, the case as it proceeds against the widow and heirs of Lycurgus L. Johnson, the bill seeks to charge them as in possession of property which equitably belongs to his estate, but it will not be doubted that no claim can be enforced against them on this account which is not also enforceable· against the estate. If the estate be discharged, they who hold property which equitably belongs to the estate are also discharged. Now, administration was taken out on the estate of Lycurgus L. Johnson on August 30, 1876, and this suit was not brought until nearly 10 years thereafter. If .the clainls were in condition to be enforced against the estate at the time administration was taken out, the
NEW ORLEANS. CANAL & BANKING CO. fl. REYNOLDS.
,statute of non-claim long since barred them as against the estate. This is the settled law of Arkansas, which, of course, is binding on this court. When the final account of the administrator of Francis Griffin was stated and settled, the balance in his hands was due to the creditors or heirs of the estate; and, if it was not paid, a cause of action instantly arose upon the bond. These creditors could have proceeded at once against the sureties, and upon the death of the surety, Lycurgus L. J ohnson, could have presented, their claim against his estate. Failing to do so, their claim was barred within two years thereafter. The fact that appeals were taken to the supreme court in respect to this final account, and litigation continued for years, in no manner abridged their right to proceed on their account as stated and settled, and when stated and settled by the circuit court. It is true that an administrator de bon'is non was appointed of the estate of Francis Griffin, who presented a claim in behalf of that estate to the administrators of Lycurgus L. Johnson, but the act amounted to nothing. He had no claim as adminh;trator de bonis non against the estate of the administrator or the sureties on his bond for the proceeds of assets already administered. This was the common law, and this, by the decision of the supreme court of the state of Arkansas, is the law of this state. Beall v. New Mexico, 16 Wall. 53,5; U. S. v. Walker, 109 U. S. 258, 3 Sup. Ct. Rep. 277; Finn v. Hempstead, 24 Ark. 117; Oliver v. Rottaken, 34 Ark. 144; Williams v. Oubage, 36 Ark. 315. Hence, as the creditors failed to present their claims in time against the estate of Lycurgus L. Johnson, they cannot now proceed against the estate or against those said to have property which equitably belongs to the estate. So far as the defendant D. H. Reynolds is concerned, it appears that in July, 1869, the administrator had under orders of the court sold certain property for $6,700. His report of sale was filed on November 6, 1869. It was then confirmed 'by the court, and the defendant Reynolds, the attorney of the administrator, wasdirected by the court not to turn the money over to the administrator, but to keep it, subject to the order of the court, and this, it is claimed, made him a special mll,ster to hold these funds. It appears, however, that in the final settlement of accounts this amount was charged to the administrator as received by him, and accounted ior in the final settlement; and the present complainants are pursuing the heirs. of the administrator's surety to recover the balance as established by that settleamount of $6,700. Whether they are esment, including therein topped by this proceeding it is immaterial to inquire, for, if the order was one which the coutt had power tomake, it was an order placed upon the records, and of which the complainants, as creditors, are charged with notice, and they are guilty of laches in thus waiting 17 years before seeking to charge him personally, especially as lor 13years the report of the administrator has been on showing the receipt of the money by him. :My conclusion, then, is in favor of all the defendants; that the laches of complainants and the statute of non-claim interpose a perfect bar to any recovery. Decree will be entered dismissing the bill.
(Di8trict(Jourt, D. Oregon.
July 16, 1889.)
The compilation of the general statutes of Oregon, provided for in tae acl of February 26, 1885. and published in two volumes, with the certificate of the governor, of August 9, 1887, prefixed thereto. as required by said act, isprima facie evidence of the general statutes of Oregon then in force, which may be cited and referred to in both judicial and legislative proceedings. by the chap· ter, title, and section as therein arranged, set down, and enumerated.
SAME-AMENDMElS"T AND REVISION.
An act amendatory of another act should contain the sections of the latter act as amended, at full length, but it need not also contain such section as UDamended. The act amended need not be published at full length in the amendatory act, unless the amendments thereto amount to a revision of the same, by producing some change in every section thereof.
SAME-TITLE-ExPRESSION OF SUBJECT-MATTER.
An act entitled merely" An act to amend a certain section of the Compila· tion of 1887," is void for want of expression of the subject of the same in the title thereof; but an act entitled" An act to amend an act relating to pilotage" purports itself to he an act relating to pilotage, and the subject thereof is therefore sufficiently expressed in the title.
(.Syllabu8 by the Oourt.)
Libel for pilotage.
Horace B. Nicholas and Edward N. Deady, for libelant. Cyrus A. Dolph, for defendant.
DEADY, J. This suit is brought by the libelant, T. F. Neil, against the ship Borrowdale, to recover a balance of $92.06, alleged to be due the libelant for pilotage. It is alleged in the libel that on May 30, 1889, the libelant was a dulylicensed pilot for the Columbia river bar, and that on that day he took charge, as such pilot, of the Borrowdale, and brought her in over the bar to her anchorage at Astoria; that the Borrowdale then drew 20 feet of water, and her registered tonnage was 1,197 tons; and that for said service the libelant is entitled to demand and receive the sum of $176, ofwhich sum only $83.94 has been paid, leaving a balance due the libelant of $92.06. The master and claimant, George Guthrie, excepts to the libel, stating thai it appears therefrom that the libelant has received for his services by law he is entitled to demand or receive therefor. all This exception is in the nature of a demurrer to the libel, and raises the qnestion whether the rate of compensation which the libelant is entitled to receive is that fixed by the law as it stood prior to February 18, 1889,-$8 per foot for the first 12 feet of draught of the vessel, and $10 per foot for each additional foot,-or that prescribed by the act of that