courts that the power exists; that in the federal coui'ts it does not. A distinction is urged in respect to this case on the view that the error sought to be corrected was an, error of fact, while in U. S.v. Teven and other cases it was an error of law, and that in the Teven Case the judgment W/lS paid and so the parties were out of court. The evidence referred to, and sought to be introduced on a new trial, is evidence of facts which existed when the case was tried. The failure to put them in evidence did not constitute error in fact. There was no e:rror in any proceeding of the court. A mistake or illegality in conducting the survey, or the failure of the defend. ant to offer evidence thereof, was not an error of the court of any kind. The principle of the cases cited applies to and controls the present case, and requires that the motion should be denied. It is not intended to imply that there was any illegality in the mode of making the survey, as that question has not been considered.
UNITED STATES V. WISE.o UNITED STATES
(Circuit Gourt, S. D. OMo.
May 26, 1881.)
NAVIGATION LAWS-REv. ST. § 4472- VARRYING PETROLEUM ON PASSENGER VESSELS-PRACTICABLE MODE OF TRANSPORTATION.
In an action to recover penalties for the violation of section 4472, Rev. St., which prohibits the carrying of petroleum and other dangerous articles upon passenger vessels, but excepts petroleum of a certain fire test, upon routes where there is no other practicable mode of transportation: Held, that although there was an all-rail route over which the petroleum might have been transported, yet, if the rates charged for transportation by rail were so high as to amount to a prohibition of the traffic in that article, it was not a practicable mode of transportation within the meaning of that section. · Reported by Messrs. Florien Giauque and J. V. Harper, of the Cincinnati bar.
UNI'l'ED STATES V. WISE.
PRACTICABLE MODE OJ!'
The word , j practicable;" in that sllction, is used in a commercial or business, and not in a mechanical; sense.
On Error to the District CoUrt.· Ohanning Richards, U. S. Dist. A:t-t'y,for plaintiff. MoUlton, Johnson « Levy and W. H. Jones; contra. D. J. These suits were h'rought 'by 'the $tates to recover statutory for carrying refined troleum as freight on passenger vessels, in violation ofsectioIj. 4472. Rev. St.·...,....,...in one case from Cincinnati to Memphis. arid in the other from Marietta to Cincinnati.' It is alleged in each case that. there was another practicable mode of transportation. which.bemg denied. constitutes the sole issue. The testimony before the district court. as' disclosed by the, bills of exceptipn, was to the effect that there was ari all-rail route 'over which the petroleum could have been 'carried in each case. but that the rate of charge was SQ high that in one case (Marietta to Cincinnati) it would consum.e the profit on the sale. and in the other case (Cincinnati to Memphis) it would destroy the trade between those points· .The district judge was requested by the plaintiff to charge the jury that if they found from the evidence there was an allrail route between the places in question that would constitute a practicable mode of transportation. within the meaning of section 4472. without regard to cost qr distance. This charge was refused. and exception taken. The jury then charged, in one case. that if the rate of freight charged. by the railroad company would consume the profit upon the sale at the point of destination. it would not be a practicable mode of transportation between those places; and. in the other case, that it would not be practicable if the rate was so high as to destroy the trade between those places. To these charges exceptions were also taken by the plaintiff. The judgment of the district court was in favor of the defendant in each case. and writs of error are prosecuted from this court
.Opinion of Judge Swing in the district court. U. 8. v. Thornburg. etc.·
6 FED. REr. 41.
to reverse these judgments the errors assigned in the ch'arge of the district judge. The question turns upon the construction of the meaning of the word "practicable," as used in section 4472, Rev. St. In cue sense it was practicable to send the oil by rail in each case,-tha,t is, in a mechanical sense; but .it is· my opinion that the word must be accepted in a commercial sense. The statute in question is a regulation of commerce, and whether a mode of transportation between any two .points is practicable, must be with reference to the commerce between those points. If the rates charged for by rail would amount to a prohibition of the traffic, it would not be a practicable mode of transportation within the meaning of this statute. This word "practicable" has been recently conin the case of Wilson v. Church, 13 eh. D. British Law Rep. 1, where certain bondholders, ha'Ving made a loan for the purpose of constructing a railroad in Brazil, sought to have the fund returned to them on the ground that the scheme had become abortive. The relief prayed was refused by the court below, where it was held that as there were no insuperable engineering difficulties the scheme could not be pronounced impracticable; but it was held by the court of appeals that as the fund in the hands of the trustees was insufficient to complete the railway, and the company had no means of raising further funds, it had become, in a business sense, impracticable to carry the scheme into effect, and the complainants were entitled to have the fund returned to them. It must be held in these cases that passenger vessels are prohibited from carrying petroleum when it is practicable, .in a business sense, to employ another mode of transportation; but if the effect of the prohibition would be to destroy such traffic it may be carried upon passenger vessels, subject to the cautionary provisions of the statute. The judgment of the district. court in each case is affirmed.
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The refusal of a defendant to plead to a criminal Information will : not defeat the ,IL ,cour,t. " · I
'." II: :'1 . 'j,i; ,,0;.;.; ; .'< L, . In such c4,se t)le entrr, of a plea of not gui)ty,under the directiou. 'of the court;:is'arhei-e niaiter bhorin. J atliI'kthoJ:htst6,rio inote1ilian ' i ')ordering, the, trial ito:ptoc8'ed 'all ifJsucb ''W8PG ititere&' '., i: jr ']'
":' . ,11)b,e 1,',itldiCted,"l iJ;J. , ant, ,stands mut/!. IS faIrly: to be ,construed to Include anmformatJon,. i ' 1'1 ':,j, .,: ,> /,.,,,, ,if',db I ." "l¥ejtJd'i\\e ligaillat B persorl16ng,tged'ill'anil'IekUl solely fromtb8fact tbat,ha ,wile engaged, in such buslness,does1nbt ll, jtpPr;from the, ,trial o,fi , such persoq the exercise of such unlawful calling.
5,' TESTIMONY!' i "Where
a 'witrtess, oihermse ;unlmpeachea;' stances ca)culatlld ,to .create Ili 8'trGngbias, what itS . inqr¢ibJe, 4lstjD;J.9J1.Y,W i npt ,p,ecesllarily to1?11 . .-Il lJ';l":; ,1, : I; '(',.II
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f'Abrarft 'J.'l?ittenlioe!er, for r ",;) . ': .. ' ."" :'i13iATCHFORD, C. J. convicted. oiffa. him by :the St.l1tes criminal information' il;Uorne'y, prosectitirig for' nnited under sebtion of the Stathtes, t6runlawfully and depdsiting in the ofthe'Unit.ea States, and'lsending'to be thereby, g,'ciraula:Fcioncerning On being arraignEld',;on the illformation: the defendant 's"tQo(I :mute, and theci:mrt directsd a plea 'afnot guilty to be enterea fot hini,i1ndWwh.s entered. An bbjection of the defihl'dant's !tnd said counsel to, such action was overruled' by the excepted' to said ruVnlf'and to sai4 direction. The defendant noW' moves air atrest of judgment on the 'aboVe It is providecfby 1032 of'the Revised'Sta.t: utes as follows: v.7,no.2-13