UNITED STATES 'l7. MURPHY.
it. On the contrary, it is clearly proved by the uncontradicted mony of the defendants that none of them had anything to do with transmitting or delivering such copies to either of those jurors, or to any other juror who sat at this trial; and it is also proved by.the testimony of both those jurors that no such copy was taken into the juryroom or laid before the jury. In order to set aside a verdict because a paper was unlawfully communicated to the jury, it must, at IE-ast, appear either that the party in whose favor the verdict was afterwards returned took some part in· the communication, or that -the paper was such as ·could be supposed to have influenced the minds of the jury; and the affidavits of jurors, though incompetent to prove the part which any of them took, or the motives by which any of them were influenced, in their discussions with each other about the Case, are admissible to disprove that a· certain paper was before the jury or was read by them. Woodward v. LeaviU, 107 Mass. 453, 466-469. The copies in question having bp.encom-: municated to the two jurors out of court, and without any tion of the defendants, the case stands just as if those jurors had happened, on the way to or from court during the trial, to read the .opinion in a newspaper, or in the official reports of the supreme court; and there is no such presumption that they could have been unduly influenced by' their separate reading of that opinion as will justify the setting aside of the verdict subsequently returned by the jury, after being fully instructed by the court upon the law applicable to the case. U. S. v. Reid,12 How. 361,366. Judgment on the verdict.
UNITED STATES 'D. MURPHY
(C4n'cmU Ccrwrt, 8. D. CaUforn1.a. November 10; 1890.)
ColllTEHPT-CAUSING ARREST OP RECEIVER.
'l'01fl1 ordinances granted a steam-motor company the right to construct and operaftl its road through the streets of the town. In an action. to foreclose a mort... gage on the road, a receiver was appointed by the circuit court, and ordered, to operate the road. HeZd that, even tboughthe ordinances were void, it was aeontempt of court to cause the receiver's arrest on a complaint charging him with a violation of Pen. Code Cal. § 370, declaring anything a puolio nuisance which o}):.' structs the free use of a street or highway. . ,
Proceedings for Contempt. J. D. Bethnne and E. H. Lamme, for receiver. Byron Waters, for defendant Murphy. D. G. Parker and James Faris, in pro. per. Ross, J. In the suit of Union Loan « 'I'rmt Ch. v. Jamia Motor-Road Co., heretofore commenced, and since pending in this court, for the foreclosure of a certain mortgage, I. H. Polk was by the court duly appointed receivel' of the property involved in .the sUit, con-
sisting, in part, of a steam-motor railroad, with its franchises, rights of way, etc" extending and then in operation from Riverside, in San Bernardino county, through the town of Colton to the city of Sun Bernardino, and. directed to manage and operate the same for the benefit of the parties in interest. The receiver appointed duly qualified, and took possession of the property on the 3d day of June last. On the 16th of September he presented to this court his affidavit, setting forth, alllong other things,that by the provisions of the charter flnd franchises of the motor company it was authorized and empowered to construct and operate its road and run its trains over the same through the town of C6lton, and along the streets thereof, and that the road ran and was being operated through that town without hindrance, when the affiant took possession of it under the order of this court; that on the 8th of September the affiant was arrested, and is still under arrest, by the respondent Faris, as constable of San Bernardino township, under and by virtue of a warrant of arrest issued by the respondent Parker, a justice of the peace for that township, upon the complaint of the respondent Murphy charging the affiant with a crime in the running and operating of said road along the streets of Colton pursuant to the order appointing him receiver. Upon reading and filing that affidavit this court made an order directing the said Faris, Parker, and Murphy to show cause, at a certain designated time, at the court-room of this court, why they, and each of them, should not be adjudged guilty of a contempt of this court, and directing a copy of the affidavit to be served on .each of them with the order to show cause, which was done. At the time and place designated the said Faris and Parker appeared in person and the said Murphy in person and by counsel. The matter was thereupon heard, and Parker and Faris testified in their own behalf,-the former, that at the time the complaint was lodged in his office, and at the time he issued the warrant, he did not know that Polk was operating the road as the receiver of this court; and the constable, that at the time he executed the warrant he was likewise ignorant of that fact. Neither the complaint nor the warrant disclosed the official character of Polk, and both the justice and the constable expressly disclaimed any intention of interfering with cOmthe officer of this court in the discharge of his duties or of mitting a contempt of court. Under such circumstances, I do not consider it necessary to decide whether the justice and conf:ltable would have been guilty of a contempt of this court had their action in the premises been with knowledge of the fact that the criminal proceedings in question were prosecuted for the official acts done by the receiver in the discharge of his duties under the order of this court. As to the respondents Parker and Faris the present proceedings will be dismissed. At the hearing, however, it was conceded by the respective parties that the respondent Murphy did know at the time he filed the complaint against Polk with the justice that the acts therein charged against him, and for which he was arrested under the state process, were acts done by him in discharge of his duties as receiver of this court. In other words, that the respondent Murphy caused the receiver to be arrested
UNITED STATES V. MURPHY.
under a provision of the Penal Code of the state of California for doing just what this court directed him to do by the order appointing him receiver. It is contended on his behalf, however, (and his action in the premises was based upon the claim,) that the ordinanpes of the town of Colton, under which the road in question was 'constructed and was operated at the time of the appointment of the receiver, and under which the receiver has continued to operate it. and which ordinances are set out in the answer filed by relSpondbnt Murphy to this proceeding, were void, and that, consequently, the operation of the road in question by the receiver along the streets of the town ot' Colton constituted a public nuiRance, which the respondent Murphy had the legal right to prosecute under and by virtue of section 370 of the Penal Code of California, which reads as follows: "Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of propE'rt)'. so as to interfere with the comfortable enjoyment of life or property, by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigablfl lake or river, bay, stream, canal. or basin,or any public park, square, street. or highway, is a public nuisance."
It is undoubtedly true that the position of receiver of a federal court does not afford such officer immunity from arrest for a violation of the ordinary criminal statutes of a state. But the question here is whether the court that has, in an action over which iUl jurisdiction is unquestioned and beyond question, taken into its possession the property involved in it and appointbd a receiver to manage and operate the property for the benefit of the parties in interest, will permit its officer, who is but the hand of the court, to be arrested or otherwise interfered with in the discharge of his duties uncler the order of the court. It seems to me there can be but one reasonable answer to this, and that in the tive. Every court should take a sensible view of matters before it. Because the receiver of a court would not be exempt from arrest for murder or grand larceny, or any other crime committed outside and independent of his duties as such officer, it by no means follows that immunify from arrest will not extend to him for acts done in discharge of the du'ties imposed upon him by the order of the court having jurisdiction in the premises. If the receiver can be arrested and imprisoned for doing the very thing the court appoints him to do,-in this instance, for operating the motor road in precisely the same way it was being operated at the time of the commencement of the action in which he was appointed, and in precisely the same way in which the road has been operated ever since its construction,-it is manifest that the power of the court to appoint a receiver to take possession of the property, and manage and operate it for the benefit of the parties in interest, would be a power in many cases barren of results. The conduct of the receiver is always subject to the control of the court appointing him, and in any case where the receiver, in the exercise of the powers conferred upon him, interferes with the rights of any third person, it is to be presumed that an
· FJ,i:PERAL REPORTER, vol. 44.
tl-PPl'opriate ,application to the boUrt having' oontrolof hitnwilll;emedy the wrong, 01.' the aggrieved partyinay have recourse to any appropriate ciyilaction "against him, by virtue ()f seotion 3 of the act of March 3. 1887" (24U. S. St. at Largel P' 554.) But in my opinion no individual can be permitted to· cause the arrest or imprisonment of a receiver for doing wha.t the court, havingjurisdiction in the premises and in the exercise of· a power which, it seems to me, cannot be doubted, orders him do. It is no answer to say, ,as does thu counsel for the respondent,Murphy;, that, if the ordinances under which the road was constructed and operated were void, its operation along the streets of the town of Colton constituted a pnblicnuisance, and therefore a crime un,deuection37,O of the Penal Code california, and that this court, in that event, had not the power to order the receiver to operate that por,tion for tp!:l.reasonthllt that wquld be to order :him to commit a a cqurtJlaB. not the power to order its ra:,to violate any of the ordinary; criminal statutes of a state, and 8bcb: an order"if made" would afford no protection to the offioer comrilitting the offense. But there is and oan be no crime about this mat:ter.' :' Acorporation owoiriga railroad w,hich it constructed and operated in part along the streets of Colton, under ordinllnces of that town puriportingto,grant it the right to dOiSO,: is sued by a mortgagee Of the property,toforec!()S6. the mortgage, and the court in which the action is ,pending,appoints a receiver to .takepossession oftha property, and manage ;and opemte. it, pending the litigation, just as it wa.l!operated by the fro[IJ.· whose it was, ,taken. To Bay that the officer of oourt, in obeying theS(;linstructions,can be arrested and imprisoned ,aUbe instance of a third.party,upontbe ground that the ordinances .under·which,the road was constructed and operated were void t is, in ef.fect.to deny to the court of equity having jurisdiction of the cause the power to protect the property it has taken into ita possession t and'subject the property rights'.it has been called upon to administer and adjudicate to the decision .of the criminalcoul'ts of the state. Any view that will lead to such results, it is safe to say , canuot be sound. .'NoJilO,Qf the authorities cited by counsel are in point here, nOr have. I been ,able to find any in point. But, upon principle, I entert.ain no :doubt that the action of iherespondent Murphy constituted a contempt of. this court, for which he must be .punished. It appears, however, that his action was taken in pursuance of the advice of his coullBel to the effect that it was in accordance with his legal rights, and without any intention on,his part.to commit a contempt of this court; and from the professional staudingof t\1e counsel, and my personal knowledge of .qim,: I.am satisfied that the advice was given in good faith, and in the honest belief that respondent was legally justified in his action. Under .these' circnmstancesJ8.light. punishment will be imposed, which, however,.is not to be regarded. as a precedent in the event of any other .or ·furtherinterferencewitp the receive:.; in the discharge of his duties. " From the records of the ,court, and from the stipulll.tion of the parties made in, open court, 'the court finds, the facts to be as stated in the fore-
WARD V. CHINA MUT. INS. 00.
going opinion, and from these facts it is by the court considered and adjudged that the respondent M. A. Murphy, in making and filing the complaint. and causing the arrest in question, committed a contempt of this court, for which contempt it is by the court ordered and adjudged that he, the said M. A. Murphy, pay a fine of 8100, and that he be ' imprisoned by the marl:lhal until the fine is paid.
MOT. INs. Co.
November 5, 1890.)
(Oflrcuit Oourt, S. D.New York.
K.UUlfB INSURANCE-DENIAL OP SEAWORTHINEss-BILL OP PARTICULARS.
In a suit on a marine insurance policy seaworthiness is a matter of warranty on the part of the assured, compliance with which must be averred in the complaint, and is put in issue by a denial, and, though the defendant unnecessarily pleads unseaworthiness as a defense. he will not be required to furnish a bill of particulars.
Motion for bill of particulars.
B. W. Huntington, for plaintiff.
Bull, for defendant.
LACOMBE, 'Circuit If the alleged "unseaworthiness" were in fact a separate and affirmative defense, I should be inclined to grant this motion for a bill of particulars. Seaworthiness,however, iSR matter of warranty on the part oftha assured, ahd such warranty must be complied with to cntitle him to recover. Such compliance must be pleaded by him, or his complaint does not set forth facts sufficient to constitute a eaUl;e of action. Under the state practice the averment of the fifth paragraph of the complaint may be sufficient tofulfill this requirement. If it is not, then the complaint is defective, and demurrable; and such objeclion may be raised on the trial by a motion to dismiss on the pleadings. If compliance with the implied warranty of seaworthiness is suf- . ficiently averred in the complaint. issue is joined thereon by the specifip denial in the answer of every allegation contained in the fifth paragraph of the complaint. Of this issue the plaintiff haMs the atp.rmative. It has been held in this circuit (Lunt v. Insurance Co., 6 Fed. Rep. 562) that upon the the plaintiff may rely upon a presumption to establish the affirmative of that issue, -and that he is not called upon in limine to give of his compliance with the warranty; but that does not· change the issue itself. It is still one of which the defendant holds the' negative, and under which he may introduce evidence showing that the vessel was not in fact seaworthy. There seems, then, to be no necessity for pleading unseaworthiness as a distinct and separate defense, and no" ground, therei'ore, for requiring the defendant to furnish a bill of partic-