mortgaged property, does not make the two suits one, though, for convenience in hearing, they are consolidated, nor does it affect the rules governing parties, issues, or pleading in the foreclosure suit, and, where the mortgage constitutes the first lien on the property, it is not necessary that a decree of foreclosure should await the establishing and adjustment of all claims filed in the creditors' suit.
-Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 95 Fed. 497; Hamlin v. Same, Id.; Rose v. Same, Id.........36 C. C. A. 155 Under a railroad mortgage which expressly authorized a mortgagor to receive the income until default had been made for three months, whereupon the trustee could take possession of the road and operate the property until sale, or apply for a receiver, upon electing to ask for appointment of a receiver the right to the rents and profits inured to the mortgagee, subject to such terms as the court might impose, at the date of entry by the receiver.
-Central Trust Co. of New York v. Chattanooga, R. & C. R. Co.,
94 Fed. 275; Owen v. Jones, Id....
.36 C. C. A. 241
Neither the local laws of Georgia nor the decisions of the supreme court of that state limit the security of a mortgagee to the corpus, to the exclu sion of the income after default.
-Central Trust Co. of New York v. Chattanooga, R. & C. R. Co.,
94 Fed. 275; Owen v. Jones, Id......
.36 C. C. A. 241
There being in force a general law for the incorporation of railroads which authorizes the mortgage of future-acquired property, the fact that the original or amended charter of a railroad company does not authorize a mortgage of after-acquired property will not affect the right to execute such mortgage, as power in that respect is given under the general law, and the lien of such a mortgage will take precedence of the liens of subsequent judgments on such after-acquired property.
-Central Trust Co. of New York v. Chattanooga, R. & C. R. Co.,
94 Fed. 275; Owen v. Jones, Id.....
.36 C. C. A. 241
Where a decree for the sale of railroad property in a foreclosure suit contains an independent and unconditional provision that the sale shall be subject to all current liabilities of the receiver, the purchaser takes the property subject to such condition, without regard to the question of priority between such liabilities and the liens under which the sale is made. -Anderson v. Condict, 94 Fed. 716..... .36 C. C. A. 437
Where a railroad corporation is unable to pay its currently accruing interest, it is actually, as well as technically, insolvent, and its property inadequate security for its mortgage debt, and it may be put in the hands of a receiver.
-Central Trust Co. of New York v. Chattanooga, R. & C. R. Co..
94 Fed. 275; Owen v. Jones, Id.......
.36 C. C. A. 241
That a mortgage does not expressly include the income on the property mortgaged is not material, as the mortgagee can only be interested in the income on default, on which event, if the maker is insolvent and the security inadequate, he is entitled to the appointment of a receiver to preserve not only the corpus, but the rents and profits, for the satisfaction of the debt.
-Central Trust Co. of New York v. Chattanooga, R. & C. R. Co.,
94 Fed. 275; Owen v. Jones, Id.......
.36 C. C. A. 241
Where the evidence showed that the engineer, on a descending grade, did not discover a child on the track until within a train's length of him, when he applied the air brakes, released the sand, and did everything to stop the train, short of reversing the engine, which would result in a wreck, the reiteration of language in the instruction tending to show that in the court's view he should have reversed the engine was erroneous,
as it was the duty of the jury to determine from the evidence whether the
care of the engineer was such as a prudent man would have used.
-Texas & P. Ry. Co. v. Harby, 94 Fed. 303....................36 C. C. A. 353
An instruction, in an action against a railroad for causing the death of
an infant, which states that it is the duty of the engineer to use every
means within his ability to stop the train in order that no injury may be
inflicted to one on the track, and that a failure to exercise every power
and means consistent with the safety of those on the train and engine to
stop the train will render them liable in damages, and which is defective
as requiring too high a degree of care, is not rendered less misleading or
cured by adding that, "In this respect you are charged that a reasonably
prudent and cautious person would have used all the efforts in his power
and within his means and ability, consistent with the safety of those on
the train and engine, to stop the train," and by conversely stating the
matter, saying, "If, however, the engineer, after discovering the peril of the
child, used all the efforts at his command, consistent with the safety of
those on the engine and the train, to stop the train, and avoid the injury,"
etc., as the charge clearly limits the qualification of the duty to use all
means, etc., alone by the terms "consistent with the safety of those on the
engine and train."
-Texas & P. Ry. Co. v. Harby, 94 Fed. 303........36 C. C. A. 353
An instruction, in an action against a railroad for causing the death of
an infant, after stating that servants operating a train should use “such
care as an ordinarily prudent person would exercise to stop the train in
order to prevent injury to the party on the track," was qualified, without
coming to a period, by adding: "And in this behalf the care and cau-
tion an ordinarily prudent person would use would be to use every power
within their ability and means to stop the train, in order that injury might
not be inflicted on the person on the track; and if they fail to exercise
this care, and to use every power and means consistent with the safety
of themselves in their position on the train, and by reason of their failure
to exercise such care and caution the person is injured, then they would be
liable for any damage sustained or loss occasioned by reason of the injury."
Held to require a degree of care higher than such as "ordinarily prudent
persons would exercise."
-Texas & P. Ry. Co. v. Harby, 94 Fed. 303........36 C. C. A. 353
When, for a considerable period, numerous persons have been accus-
tomed to walk across or along a railroad track between given points, those
in charge of passing trains are required to take notice of such fact, and to
use reasonable precautions to prevent injury to persons whose probable
presence on the track should be anticipated.
-Garner v. Trumbull, 94 Fed. 321...
An ordinance, under power delegated by the legislature, granting a rail-
way company a right to construct a railroad upon a public landing under
condition prohibiting use of the track during specified hours, combines
contractual as well as police provisions, the atter being in the interest of
public safety.
-Pittsburg, C. & St. L. Ry. Co. v. Hood, 94 Fed. 618..36 C. C. A. 423
Plaintiffs' intestate, a teamster, stopped his team on the landing at a
wharf at a point 30 to 60 feet from a train, and commenced to unhitch the
horses preparatory to hauling another wagon into position. A movement
of the train at this time was made, and the engine let off steam, and
otherwise caused much noise. The horses became frightened, and the
teamster, in the effort to control them, was dragged and trampled upon
by the horses, inflicting injuries from which he died. The operation of
trains at this point at the time of the accident was prohibited by ordinance.
Held, that the act of the railroad company was the proximate cause of the
injuries.
-Pittsburg, C. & St. L. Ry. Co. v. Hood, 94 Fed. 618. .36 C. C. A. 423
Of railroad companies, see "Railroads," § 4.
§ 1. Management and disposition of property.
A receiver was appointed for a mining corporation, upon a bill alleging
insolvency of the corporation, and inability to earn its charges and oper-
ating expenses. By consent, he was to operate the mines, and was au-
thorized to borrow money, and was directed to pay all debts for labor and
supplies incurred by the corporation within the six months preceding his
appointment; payment to be made from earnings and income, or from
money borrowed. Held, that the expenses of the receivership and the debts
for labor and supplies were not payable alone out of the income and rev-
enues of the corporation, but they might be paid out of the corpus of the
estate.
-Reinhart v. Augusta Min. & Inv. Co., 94 Fed. 901; Manhattan Trust
Co. v. Same, Id.; Van Volkenburgh v. Prout, Id. .36 C. C. A. 541
The receivership was afterwards extended to a suit to foreclose a mort-
gage of the mining property, on motion of the trustee of the mortgage;
and a decree was passed, without objection, ordering a sale, and giving the
debts for labor and supplies, and the expenses of the receivership, priority
over the mortgage. A decree of distribution was passed in accordance
with the decree of foreclosure, and no appeal was taken therefrom, except
by certain of the mortgage bondholders, who had caused the receiver to
be appointed. Held, that the mortgage bonds were not entitled to priority
over said expenses and debts, since the parties had agreed otherwise.
-Reinhart v. Augusta Min. & Inv. Co., 94 Fed. 901; Manhattan Trust
Co. v. Same, Id.; Van Volkenburgh v. Prout, Id. .36 C. C. A. 541
Transcript on appeal or writ of error, see “Appeal and Error," § 6.
From mortgage, see "Mortgages," § 5.
On appeal or writ of error, see "Appeal and Error," § 9.
See "Accord and Satisfaction."
Of evidence in civil actions, see "Evidence," § 3.
Effect on jurisdiction of equity, see "Equity,” § 1.
For instructions to jury in civil actions, see "Trial," § 3.
Of contract for sale of land, see "Vendor and Purchaser," § 1.
Of railroads, see "Railroads," § 2.
Assumed by employé, see "Master and Servant," § 2.
See "Vendor and Purchaser."
§ 1. Right to compensation.
Services of tugs in towing a steamer from an offshore sand bar, on
which she had grounded, in connection with their carrying out the steam-
er's anchors to enable her to assist in getting off the bar, are in the
nature of salvage services, authorizing compensation on that basis.
-Ulster S. S. Co. v. Cape Fear Towing & Transportation Co., 94 Fed.
214
...36 C. C. A. 201
2. Amount and apportionment.
An allowance of $13,000 for salvage services in getting a steamer off a
sand bar should be reduced 50 per cent., though the steamer was worth
$300,000, the value of the tugs employed being only $18,000, all the serv-
ices being rendered under the direction and control of the master of the
steamer, the real services which put her afloat being, in, the main, ren-
dered by herself, operated by the master and crew, it appearing probable,
the good weather continuing, that without the services of the tugs the
master would have successfully floated her through the use of his own
crew and appliances, no risk being incurred by the salvors, and the tugs
being exposed to no danger, the skill shown in rendering the services
being of the ordinary kind, the labor being the ordinary employment of
the tugs and persons engaged, the time employed being less than a day,
and it appearing that extraordinary awards were given by the decree to
members of the crews of the tugs, such as $300 to cooks and firemen, who
performed no services out of their usual routine, and whose wages were
$1 a day.
-Ulster S. S. Co. v. Cape Fear Towing & Transportation Co., 94 Fed.
214
......36 C. C. A. 201
Where salvage services which occupied less than a day are of the low-
est order, and the crews of the tugs perform only services in the ordinary
course of employment, the award to them should not be more than two
months' pay.
-Ulster S. S. Co. v. Cape Fear Towing & Transportation Co., 94 Fed.
..36 C. C. A. 201
See "Accord and Satisfaction,"
It seems that, under the general admiralty practice, a seaman injured
through the use of defective appliances furnished by the owners of the ship
may proceed against the ship for damages.
-Lafourche Packet Co. v. Henderson, 94 Fed. 871...36 C. C. A. 519
Where a skid used to stow barrels into the hold was broken on a prior
voyage, to the knowledge of the ship's officers, so that, through the sagging
of one side of it, a bolt worked up and caught a barrel being sent down,
and threw it off and against a seaman engaged in the work, the ship was
liable for the injuries inflicted.
-Lafourche Packet Co. v. Henderson, 94 Fed. 871...36 C. C. A. 519
Of process, see "Process," § 1.
See "Master and Servant," § 1.
See "Admiralty"; "Maritime Liens"; "Salvage"; "Seamen."
§ 1. Liabilities of vessels and owners in general.
A provision of a charter party that "the owners shall pay for insur-
ance on the vessel," to be given any effect as between the parties, must be
construed as requiring the owners to insure against all such losses as
would otherwise fall on the charterer; and, where the owners failed to
procure insurance, they made themselves insurers, and cannot cast upon
the charterer the burden of paying damages recovered against the vessel
for collision, against which they might have insured.
-The Barnstable, 94 Fed. 213..
The rule that the master of a vessel has no authority by virtue of his
position, either actual or apparent, to sign a bill of lading for cargo not
actually received on board, applies when there is only a deficiency in part
through mistake, and the owner cannot be held liable, either by the original
consignee or an indorsee of the bill of lading, for such a shortage, where
the quantity actually received is delivered.
-American Sugar-Refining Co. v. Maddock, 93 Fed. 980.
Where a steamer was run upon the beach solely because a leak had been
discovered which could not be controlled, and water immediately came in
over her deck, so that merchandise was injured, the proximate cause of
the injury was the leak, and not the stranding of the vessel.
-Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed. 180....
36 C. C. A. 135
A provision in the shipping receipts that all claims against the steam-
ship company or any of its stockholders for damage to the goods must be
presented within 30 days from the date thereof, as a condition precedent
to suing the company or its stockholders, does not cover the right to
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