43 F. 120 -

:120

FEDER;A;l. REPORTER,

vol. 43.

,some support the libelant's case, others that of claimants. Finally, in the testimony of nearly every witness .there is much inconsistency, and .it is impossible to frame such a theory of what occurred as will harmonize with all the proof. Some of the witnesses who testified on this branch of the· case were exa.mined before the district judge. His decision, therefore, is affirmed. In so .doing the evidence of those on the Holberg Ihust be in part accepted and in part discredited; either the fog prevailed for a time much less than they say it did, or she ran at full 'speed for some time after itsbut in. It is, however, natural to expect that a witness wbo is testifying to the density of the fog, or the duration ,of a, period of reduced speed,. when the fog or reduction of speed is sup:.posed by bim to belphis side ofitheicase, will exaggerate his estimate in both particulars. That bis narrative thereby becomes inconsistent is ':ll.Qt ;by itself sufficient torequii'e its; entire rejection, especially where it ,is in part corroborated by'other :proof. In this case, the disinterested '.witness wbo concededly was near;,est to the collision, botb in time and place testified tbat he overtook and, passed the Holberg going slow in a and that there was dense fog :dense fog, with her in the Narrows llt about 4 Po; 1Il.,il!t:testified to by tbeJight-house keeper ;atFort Tompkins, (whose by,bis log-book,) and by the soldier at the same fort. ,,; :'l1he decree oLthe district court is :affirmed, and the libels dismissed.
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I

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THE LUDVIG HOJ,BERG. STAFF01U) ,,:

:; - ;

LUDVIG HOLBERG.

. I

THE

F. O.

MATTHIESSEN

&

WmcHERS HoLBERG.

'",

S. R. Co.

V. THE LUDVIG

(Oircuit Court, B. D. New York. June 20,1800.)
It is not necessary to conclusion of law or flnding of fact that the circumstance tbat some of the were examined before the district judge influenc,ed the circuit court in deciding to affirm the judgment of the distriot court rendered upon conflicting eVid,en,ce.; : ' ., ' '

,

In Admiralty. Appeal froni' court. On motion to amend the For former opinion"giving the findings, see ante, 117.

,,: 'in That

OF PROPOSED

TO FINDINGS

BY THE COURT.

the and .made more Jlpq ;certain by stating hQw fa;r sputhward and hpw far to the east;l,ra,rd Qfbuoy 11 the collj,EjlOl) occurreq, or that saiq finding be madE> specific than it n9W js by the use of the expression "a little." 'That the,fourth findingjbe amended by stating that "th.., pitch of

THE LUDVIG HOLBERG.

121

the 'screw of the Ludvig Holberg was' 14 feet 2 inches, and at full speed she rnade from 69 to 71 revolutions per minute, at half speed 40 to 45 to 50 revolutions per minute, and at slow speed she made 20 to 25 to 26 'revolutions per minutej" and, if such amendment be refused, that an additional finding be made to that effect. (3) That the fifth finding be amended, and made more definite and certain by striking out the words "between 3:05 and," and by stating more exactly the tiJ11e at which the 'steamer started from pier 15, East river. (4) That the fifth finding be amended by striking out the word "dead" before the word "slow,"in the two places in which it occurs in said
(5) That the sixth finding be amended and made more definite and certain by striking out the words "between 3:27 and," and inserting in pltice thereof the word "about," or otherwise specifying more exactly the tiine when the Holberg wa:s off Bedloe's island. ' (6) That the sixth finding be amended by striking out the words" a little over 3i," and inserting "3t knots," or by indicating how much over 3i knots is intended by the expression" a little over." (7) That the sixth finding be amended by inserting after the words "thereafter and" the words "after a period of Slack water." (R) That the seventh finding be amended by inserting the word "dense" before the word" fog" in the sentence "there was so much fog I\S to prevent vessels," etc. (9) That the seventh finding be amended and made more definite. and <lertain by striking out the words" a short distance" and inserting the words "about 200 or such other distance as the court shall find upon the evidence that the vessels could be seen in that fog. . (10) That the seventh finding be amended by inserting the word "dense" before the word" fog" in the sentence, "this fog had prevailed between the Narrows and' buoy 11." (11) 'fhat the seventh finding be amended by striking out the word "fifteen," and inserting the word "twenty." (12) That the eighth finding be amended by striking out the words the time," and inserting in place thereof the word" before," in the sentence, "the Ludvig Holberg ran into this fog about the time she passed the forts!' (13) That the eighth finding be amended and made more definite and certain byspecifyillg howl1luch below the forts the Ludvig Holberg had got before she reduced her speed, in place of the expression "eome tance." (14) That the ninth finding be amended and made more definite and ,certain by indicating how much below, in place of the expression "a little below." the Holberg had got when she had slowed down to about four knots, and the time when she so slowed. (:15) That the eleventh finding be amended and made more definite :and certain by specifying how many hundred feet off, or about ho\v many· feet-oft·, the tug-boat was when she first came in sight.

.
r(16) iTI:l.&tthethirteenth finding beamended by stating that the steamer, stitrbMrCled:about one point, or as oouoh as ,the court finds the fact to be thatshEl ffid,starboard. , i . (17),'Thlltthe thirteenth ,finding be amended by adding thereto the words, "by reason of the tug at taking a rank sheer to port.'l· , , (IS) That the .fourteenth finding' be :amendedby inserting the words "in JobeBience .to the tugls single whistle," .aftertPe :words ".to starboard of her." (19)" That the eighteenth finding be amended l>yinsertingthe words nbt:before" after! the words "vessel intow.",//, '., (20) That an additional finding of fact and conclusion of law to the ;eft8ct that SOme of the witnesses· who testifredas to .login the districtctiurt were 'examined before the: district judge, rand that it is to. be 8Ssut)ledas :matteroflaw that the effect which -the appearance of such witnesses. produced on the district cotlr,tia a fact pl,'operto be by' the circuit court in: conolusion; or !lome similar conclusion, oflaw,whicl;l :,would state': the legal effect intended to be. given by th", court to the faot that some witnesses' were SO e;x:amined before the district judge. ':'d,l '; : . , Sidney OhublJ,.( Geo. A,.:JJlo.,ck, of counsel,) furlil:>elants.
,.':'!"

-LAOOMBE;J' ,i' .1. The proposed amendment to the second finding is refused j the evidence does not warrant a more specific statement. 2. T.M 'Proposed ameiidment to the fourth finding is granted. 3.· The proposedamenuments to the fifth finding are refused; the evidence· does not warrant a, more speCific. statement. . 4. The sixth finding is' amended by inserting the words "a,fter a bdef periodohlackwater." The other amendJ:r,entsto this finding are refusedi ithe.ev:idence not. warranting more. s!*cifiQ statenlents. 5. The proposed amendments to the seventh finding are refused for the words "a. short distance."there may be the'sanierea/Jon, but inserted "estimated by the Witnesses from the HolPerg at between 200 and"SOO,feet.". 'The prdp-osed amendments to, the eighth flnding .are refused for .: 7. The proposed amendments to the ninth finding refused for the same reason.';' " . ,i'. 1 8. The propo'Sed amendments to the elev:enthfinding are refused fOl:' same lreason;u" 9. The proposed amendments to the thi'rteenth finding are refused for l , , ' '" the,same : '10. The proposed amendment to the fourteenth finding is refused for , ; , the same reason. , 11. The proposed finding to the eighteenth ,finding is granted. :12. The proposed additional finding:tiHacta,nd conclusioll of is rMused. ,It is riot such a finding or conclusion as.ia contemrplated by the act of 1875. ,,'1'hatact does not require ,the. circuit judge to setfQrt4

118
among, the aI;ld some small isolated fraction of the entire mental process by which as a trier of the facts he reached a oonclusion::touching the weight of conflicting evidence.

FARRl!JL tI. NA'tIONA;L SHOE &

(Circu:/.t CCYUtrt, D. Oonnecucut.

BANK.

July 18,1800.)

1.

DEOEIT--:MISTAU 011' LAW.

Plaint,ilf,bein'g a,bout to,' enter into ,a contract With, a, cOTporation for loanll and advance's to it to a large amount, provided its debts llad been accurately stated, for the purpose of verifying said statement, asked the defendant bank how much the cOTporation owed it. Defendant told him a certain amount, which did not include notes given to it by a third person for money actually loaned for the benefit of and received by said corporation, liability for which was denied by said corporation, and not understood, at the time, by' the officer who gave the reply. The bank acted in gOOd faith. Plaintiff, relying upon the correctness of the answer. entered into the contract. The bank afterwards claimed that the corporation was liable upon 'said notes, sued it thereonjthe corporation went into inSOlvency, and great lOBS was suffered by plaintiff. n an action of deceit, held, that defen,dant 'was not liable, its representation having been made' in good faith, the mistake which caused the misrepresentation being a mistake of 'law upon a state of factI which were imperfectly understood.
JUDGMENT-PRIVIES'-:AsSIGNMENT II'OR BENEFIT 011' CBEDITORS.

9.

Though. 'under the insolvent laws of Connecticut, the trustees of an insolvent estate are'the representatives, 6f the creditors for the appropriation of t11e perty of the insolvent towards the payment of their debts, they are not their privies in law so that a creditor is bound by all the findings of the court in a suit between. the trustees and another creditor as to the validity of the latter's claim against the estate.

At Law. J. P. Kellogg, S. W. Kellogg, and Ohas. R. Ingerso71, for plaintiff. Geo. O. Lay, H. O. Robinson, J. Halsey, and John W. WebBter, for defendant.
SHIPMAN, J. This is an action at law, which was tried by the court, the parties having filed a written stipulation waiving a trial by jury, as will more fully appear by the stipulation which is a part of the record. Upon the trial by the court the following facts were proved, and are found to be true: In the year 1853, or 1854, a joint-stock corporation, under the name of Brown & Bros"was formed under the laws of this state for t.he manufacture of brass and copper goods in the town of Waterbury, which business was continuously prosecuted until the insolvency' of said corporation in 1885. The corporation had for many years a store and branch dffice in New York city, of which William H. Brown had charge from about 1868 till 1884, and for a period of more than nine years before 1884 he acted as the New York agent and representative of the corporation, and during tbat time had exclusive charge of the loans and discounts' obtained for it. or for its use, in New York. From 1875 till 1880, he was secretary of the corporation, and from 1880 to 1884 he was its president. In 1875 he opened two accounts with the defendant, onei.nthe name of "William H. Brown, Agent/' and