THE NELLI.B: FLAGG.
671
sufficiency of the libel; but are in the nature of a special demurrer, or of a motion to make the pleadings more definite and certain. Upon exceptions of this limited character, rule 28, before referred directs what order the court shall make; namely, to require the defendant "forth\\'ith to answer the same." As this rule is a specific direction to the court, I think the court would not be fairly authorized or warranted, under the more general provisions of rules 30 and 32, to proceed pro confesso against the defendant in the first instance for default of "due answer." But should a default be afterwards entered for the defendant's contumacy in not obeying an order entered under rule 28, there is no doubt a docket fee could then be taxed. Wooster v. Handy, supra; Hayford v. GrijJith,3 BIatchf. 79; The Bay City, 3 FED. REP. 48; In re Trundy, IS· FED. REP. 607. A hearing on exceptions lilw the present is, therefore, in no sense a final hearing; and the pra:ctice which has previously obtained, in not awarding costs on such hearings, must be adhered to.
THE NELLIE FLAGG.
(District Oourt, N. D. New York.
May 12, 1885.)
TOWAGE-NEGLIGENCE-INJURY TO CANAL-BoAT IN LoCK. On examination of t he evidence in thig case, held,'that negligence
on the part of the steam-lug Nellie Flagg, caus;ng the injurrto the caual-boat WilHamA. Rundell, was not shown, and that the libel shuuld be dismissed.
In Admiralty. J. F. Mosher, for libelant. E. W. Douglas and E. L. Fursman, for claimant. COXE, J. The libelant, Charles P. Moore, as master of the canalboat William A. Rundell, contends that on the eighteenth day of November, 18S2, at West Troy, New York, while his boat was being towed by the steam-tug Nellie Flagg, she was injured by the careless and unskillful navigation of the tug, in running her against the center pier, which divides tile locks between the Hudson river and the State Ba.sin at that point. Through one of these locks it was necessary for the canal-boat to pass in order to reach her destination. The claimant insists, inter alia, that the injury was caused, after the tug had cast the canal-boat loose, by the negligence of the libelant in permitting her to strike, stem on, against the bucking-beam of the lock. The evidence sufficiently establishes the following propositions: First. While the canal-boat was in charge of the tug, her lowest guard, at the corner of the port-bow, came in contact with the north-west corner of the pier. Second. .After the tug had left her she struck the bucking-beam of the lock, stem on. This the libelaut admits. Third. The leak was not discovered until she was in the lock. Fou.rth. .After being put on the dry-dock, it was
672
FEDERAL REPORTER.
found that there was opening on the port-bow from 18 inches to ;;\ feet below the lowest guard, at the upper edge of the corner-streak, on the turn coming up to the side from the bottom of the boat. 'fhe seam, for iI. distance of from four to -five feet, had opened :sufficiently to permit the oakum to be drawn out and cause the leak. ·
an
Even if it be assumeu that the blows were equally severe, how can the court determine, upon this proof, which of the two opened the seam? Upon what theory can it be said that this was done prior to the ent,ry into the lock? And yet, remembering that the burden is upon the libelant, it is incumbent upon him to satisfy the court, by evidence having greater weight than that offered by the claimant, that the blow at the pier occasioned the damage of which he complains. It is thought that there is no way of ascertaining, with any degree of certainty, that the tug caused the injury. To say that she did do so would be to substitute inference for proof. The strongest stateD;lent l!ermissible from the evidence is that she might have done so. But speculation and conjecture have no place in an investigation of this character. If, then, the proof were equally balanced between the two theories, it is quite clear that the libelant could not recover. The claimant has, however, established, by a preponderance of evidence, that the inj ury was inflicted in the lock. The only expert witness called-the boat-builder who repaired the canal-boat-was clearly of the opinion that the opening of the seam was caused by a blow on the stem, and that it was improbable, if not impossible, that it could be caused by a blow of the character described by the libelant. The evidence is conflicting as to the manner in which the tug landed the boat at the pier. That there was nothing unusual about it is maintained by a majority of the witnesses. Even if sbe struck the pier with more than ordinary force, there can be little doubt that the blow was a glancing one, and that the first seam above the cornerstreak, where the leak occurred, was nearly two feet below the point of contact, and could not possibly have come in direct collision with the pier. Add to this the fact that, on the testimony, the collision at the bucking-beam was the severer of the two, and that after it ocleak was first discovered, although the blow at the pier was cured given some 20 minutes before, and the presumptions point with great clearness to the claimant's contention tbat the negligence which caused the injury must be imputed to the libelant. It follows that the libel must be dismissed, with costs.
CENTRAL TRUST CO. V. TEXAS & ST. L. RY. CO.
673
CENTRAL 'fRUST VO. V. TEXAS
&
and others, Intervenors. 1 (Circuit Court, E. 1.
ST. L. Ry.
CO., CAMDEN LUMBER CO.,
n. Missouri.
April 29, 1885.)
LIENS FOR RAILWAY SUPPLIES-OPEN ACCOUNT.
Under the Missouri statutes a material-man is entitled to a lien for tbe whole amount due him for materials furnished a railroad under an open and current account, if the last item of the account accrued subsequently to the time witllin which a lien could be tiled. Where a material-man is entitled to a statutory lien against a railroad in the hands of a receiver, this court will treat his claim as if all necessary steps had been taken under the statute, and Will allow him an equitable lien prior in right, to that of mortgage creditors.
2.
SAME-EQUITABLE LIENS-MORTGAGES.
Exceptions to Master's Report. The intervenors' claim in this case is for lumber furnished from time to time, between August 20,1883, and December 3, 1883. Default in the payment of interest took place September I, 1883, and a receiver was appointed January 12,1884. L. P. Nolan, for intervenors. Bzttler, Hubbard d; Stillman, Phillip et Stewart, and Eleneious Smith, for complainant. ,Wells H. Blodgett and Eleneious Smith, for receiver. BREWER, J., (orally.) In the intervening petitions in the Texas & St. Louis Railway Company, which have been held by us for some time because of the decision of the supreme court of this state as to the construction of the lien law, the conclusion to which we have come is that the master has rightly interpreted that lien law, and that his exposition of the order heretofore made by this court, in reference to subsisting contracts, is also correct. Were it not for the fact that the materials furnished went into the permanent structure of road, and for which a lien could be obtained, we think that the claims would have to be disallowed as far as the items of account furnished prior to the first of September are concerned. But there was an "open, running account," as the supreme court construe that term. Indeed, in reference to one of these cases, the parties af.{reed that there was an open, running account; and while the essential facts, as narrated by the master, do not seem to me to fully bring it within the description of an "open, running account," yet there is an express stipulation of the parties. The other case presents substantially the same facts; and if there was an open, running account, the last items of which accrued subsequently to the time within which a lien could be filed, the whole account should be sustained as a prior claim; for, as was stated very early in the proceedings in this case and formu. lated in an order, where parties are entitled to a lien, and can secure 1 Reported
by Benj. F. Hex, Esq., of the St. Louis bar
v.28:r.no.14-43