In Admiralty. Suit for collision. Horace L. Cheyney, for libelant. J. B. MCPHERSON, District Judge. The libelant sues to recover the value of a cargo of coal upon the barge Nellie, which was lost in a collision with the ferryboat Dauntless in the Delaware river about daybreak on October 17, 1899. The testimony establishes the following facts: The barges Nellie and McNeill were being towed by the tug Josephine Lincoln down the Delaware river from Port Richmond to some point on the Schuylkill river. The Nellie, having on board the libelant's coal, was made fast to the starboard side of the tug, and the McNeill, having on board a cargo of crushed stone, was lashed to the starboard side of the Nellie. The barges extended about 60 feet ahead of the tug, and the stern of the tug was about 5 feet aft of the barges. The tide was ebb, and the morning a little misty, but not enough to prevent lights from being visible at least a half mile, and probably a good deal further. Both vessels were carrying the proper lights. The pilot and another man were at the wheel of the Dauntless, and a lookout was stationed at her bow. The master of the tug was at her wheel, but there was no lookout either on the tug or upon the barges. In my opinion, however, none was necessary. Each vessel saw the other in ample time, and the collision was not due to the absence or the negligence of a lookout. As the tug and tow were proceeding down the river about mid-channel, the green and the bright lights of the Dauntless, which was coming up the river on the western side of the channel, were seen about half a mile away. The vessels kept their respective courses until they were about 200 yards apart. Each was then showing her green light to the other, and their courses would have carried them past each other in safety. As a proper precaution, however, the Lincoln blew a signal of two blasts, indicating that she would pass on the ferryboat's starboard side, and put her wheel to starboard, in order to throw her head still further to the port, or eastward, side of the river. The Dauntless accepted the signal, and replied with two blasts, but for some unexplained reason (possibly, as has been suggested, because the wrong order was given, or because the right order was disobeyed by the man at the wheel), instead of keeping her course, or moving further away from the tug, she suddenly sheered to starboard, contrary to the signals that had been exchanged, and directly across the course of the tug. By this time the vessels were not far apart, and a collision was inevitable. Both vessels blew danger signals, and their engines were put full speed astern. In spite of these efforts, the Dauntless continued to starboard, and her port bow struck the McNeill on the starboard bow close to the stem, crushing through it, and striking the starboard bow of the Nellie. The McNeill sank at once, but the tug was able to run the Nellie on the bank of the river, which seems at this point to be steep. Afterwards, but how long afterwards does not appear, the barge slipped off the bank into deep water, and with its cargo became a total loss. Upon the foregoing facts, there can be no doubt of the ferryboat's fault. There is some evidence that might, if believed, incline the court towards a different conclusion, but the testimony offered by the respondent, taken as a whole, is so confused and contradictory that I place little reliance upon it. Indeed, the admitted fact that it was the port bow of the Dauntless that struck the starboard bow of each barge discredits the respondent's account so much that it might safely be discarded altogether. The respondent suggests, further, that the tug was negligent in abandoning the barge originally, and also in the subsequent search. This might be relevant if the libelant were suing the tug, but I am unable to see how it can avail the ferryboat as a defense against a loss of cargo that was certainly caused, in part, at least, by her own fault. A decree may be entered in favor of the libelant. MULLER v. KELLY. (Circuit Court, E. D. Pennsylvania. June 13, 1902.) No. 21. 1. ATTORNEYS-VALIDITY OF CONTRACT FOR CONTINGENT FEE. A contract by an attorney for a contingent fee, where it is not champertous, and the costs are to be paid, and are paid, by the client. is valid, both under the Pennsylvania decisions and those of the federal courts. 2 SAME. Where a contract to pay an attorney a contingent fee for his services in a suit is valid under the law, and no claim is made that such a contract was obtained by unfair means, it is binding as to the proportion of the recovery agreed to be paid. 8. CONTRACTS-GROUNDS FOR AVOIDANCE-INABILITY TO READ ENGLISH. A contract cannot be avoided by a party on the ground that he could not read English, and did not understand it when he signed it, where he is a man of ordinary intelligence, and no claim is made that it was obtained by the other party by unfair means. J. B. MCPHERSON, District Judge. It is not important to decide the question whether the validity of the contract in question for a contingent fee should be determined by the Pennsylvania decisions or by the decisions of the federal courts. Admittedly, the supreme court of Pennsylvania has sustained such contracts (Chester Co. v. Barber, 97 Pa. 455; Perry v. Dicken, 105 Pa. 83, 51 Am. Rep. 181); but for the purposes of this motion I shall assume that the contract is to be tested by the decisions of the supreme court of the United States. Thus tried, also, it seems to me to be sustained by Wylie v. Coxe, 15 How. 415, 14 L. Ed. 753; Wright v. Tebbitts, 91 U. S. 252, 23 L. Ed. 320; Stanton v. Embry, 93 U. S. 548, 23 L. Ed. 983; McPherson v. Cox, 96 U. S. 404, 24 L. Ed. 746; and Taylor v. Bemiss, 110 U. S. 42, 1. See Attorney and Client, vol. 5, Cent. Dig. § 351; Champerty and Maintenance, vol. 9, Cent. Dig. §§ 24, 25. 116 F-35 3 Sup. Ct. 441, 28 L. Ed. 64. These cases are all recognized in Ball v. Halsell, 161 U. S. 80, 16 Sup. Ct. 554, 40 L. Ed. 622, decided in 1896; and, although it is argued that they have been practically overruled by Peck v. Heurich, 167 U. S. 624, 17 Sup. Ct. 927, 42 L. Ed. 302, decided the next year, I am unable to assent to that view. The contract in Peck v. Heurich was champertous. The plaintiff had taken a conveyance of certain lands in trust to sue for their recovery, and, if recovered, to sell them, retaining one-third of the proceeds for his services, and agreeing to pay all the costs and expenses of the litigation. The present contract has no such provision for the payment of costs and expenses, nor had the contracts in the federal cases cited. The defendant paid for the writ when it was issued; but this is the universal custom in this county, and the amount was afterwards repaid. All other expenses were paid out of the plaintiff's share of the fund. I think, therefore, that Peck v. Heurich is plainly distinguishable, and that the pending motion must be decided against the plaintiff on the authority of the earlier decisions of the supreme court. The subject of champerty and contingent fees is discussed in a valuable note to be found in Thallhimer v. Brinckerhoff (N. Y.) 15 Am. Dec., at page 316, where many cases are quoted. Complaint is also made because the court did not submit to the jury the question whether or not the amount of the fee, 50 per cent., was reasonable, and permit them to make such allowance as in their opinion the services were worth. This position, I think, is based upon an erroneous conception of the contract. If a contract for a contingent fee is valid at all, it must be valid for all of its terms, including the proportion agreed upon by the parties. Where the contract is attacked for oppression or unfair advantage, the amount of the fee may then be one of the circumstances to be considered by the jury in deciding whether the contract shall be stricken down or shall stand. But where, as in the case now before the court, there is not a particle of evidence to show that the defendant took advantage of the plaintiff in any way, or obtained the contract by threat or persuasion,-in other words, where the contract to pay cannot be successfully attacked,-I see no ground upon which the question, how much would ordinarily be reasonable compensation? could be sent to a jury. This would be, in effect, to set the contract aside altogether; for the court could do no more, if there had been no express agreement between the parties at all. It is also said that the plaintiff was not acquainted with the contents of the paper, because it is written in English, and was not explained to him, while he is a Swiss, and unable to speak or read the English language. This is based upon a sentence or two in his testimony which refers to a different paper, the receipt for his share of the money, as is perfectly plain from the context. But, even if it be true that the contents of the power of attorney, which contains the agreement for the fee, were not made known to him when it was presented for his signature, it was his duty to insist that it should be read and explained before he signed it. He does not assert that his signature was obtained by either threats or improper persuasion or falsehood; and consequently, as has been many times decided, being a man of ordinary intelligence, in possession of his senses, he was bound to take ordinary care of his own interest, and such care required him to refrain from signing a paper unless he knew its contents: Burrill v. Bank, 92 Pa. 134, 37 Am. Rep. 669. If he voluntarily signed the power of attorney without knowing what it contained, he must take the consequences, unless he was tricked or wheedled or coerced, and of this there is no evidence. The motion for a new trial is refused. In re MACKELLAR. (District Court, M. D. Pennsylvania. June 25, 1902.) No. 82. 1. BANKRUPTCY-CREDITORS' MEETINGS-CHOOSING TRUSTEE. Under Bankr. Act 1898, § 56a, which provides that "creditors shall pass upon matters submitted to them at their meetings by a majority vote in number and amount of claims of all creditors whose claims have been allowed and are present," claims of creditors who are not present are not to be considered in choosing a trustee, although the claims have been allowed. 2. SAME--POWER OF REFEREE TO APPOINT TRUSTEE. Bankr. Act 1898, § 44, confers no power upon the court to appoint a trustee, except in cases where the creditors fail to appoint. A referee has no authority to appoint merely because he disapproves the appointment made by creditors, but in such case another meeting of creditors must be called to make the appointment. In Bankruptcy. On exceptions to report of referee. W. H. Goodwin, for excepting creditors. ARCHBALD, District Judge. On the ground that it required the vote of a majority in number and amount of the creditors present, which vote should also be a like majority of all whose claims had been allowed, the referee held that there had been no election for trustee at the creditors' meeting called for that purpose. This interpretation of the law is clearly wrong. The bankrupt act provides (section 56a) that "creditors shall pass upon matters submitted to them at their meetings by a majority vote in number and amount of claims. of all creditors whose claims have been allowed and are present." It is difficult to see how so plain a provision can be misunderstood. To have his vote effective a creditor must be present, and his claim must have been allowed, and a majority in number and amount of those who are so qualified is to control. There is nothing whatever to sustain the position that those who are not present are to be taken into consideration. This question has been recently passed upon by the court of appeals of the Second circuit in Re Henschel, 7 Am. Bankr. R. 662, 113 Fed. 443, where it is declared by Wallace, J., that it is the purpose of the act to vest the power of action in the creditors who are present, and not allow the proceedings to be de layed by the absence of those who do not take sufficient interest to participate. But the referee has further certified that, even if mistaken in this construction of the law, he would not approve of the selection made at the meeting, on the ground that Mr. Orr, the person selected, is a partner in the real estate and loan business of Mr. Reynolds, one of the attorneys who represented the claims by which he was. chosen, and so was not such a disinterested person as experience has convinced him should be appointed. Without stopping to determine whether a business association such as thus existed justified the referee in withholding his approval, it is very clear that the course which he took on the strength of it cannot be sustained. Assuming that there had been no choice by the creditors, he proceeded to appoint a trustee of his own selection. For this I find no warrant in the law. The right of a referee to disapprove or veto the choice made by the creditors is quite different from the right to himself name. The act expressly vests in the creditors the right to say who shall represent them in administering the bankrupt's estate (section 44), and it is only when they make no choice that the court or referee is authorized to do so for them (Id.); that is to say, where there has been no action on the part of creditors, the duty devolves upon the court of supplying it. It is not authorized to intervene, however, simply because the choice is one which cannot be approved. An unworthy choice is not the same as no choice at all, the creditors, by actually acting, having indicated their intention to avail themselves of the privilege given them by the law, which is not exhausted by a single exercise of it. The section which we are considering gives them the right to meet and appoint a trustee whenever and so often as there is a vacancy; and this occurs, as is pointed out in Re Lewensohn, 3 Am. Bankr. R. 299, 98 Fed. 576, when they have chosen some one whom the referee declines to approve. It therefore became the duty of the referee, not to name a trustee, as he did, but to call another meeting of the creditors, and let them do so. The action of the referee in appointing the trustee is set aside, and a special meeting of creditors for the purpose of selecting a trustee is ordered. FREEMAN v. AMERICAN SURETY CO. OF NEW YORK et al. 1. FEDERAL COURTS-DISTRICT OF SUIT. To authorize a federal court to entertain an action brought against a number of defendants, where the jurisdiction is dependent on the diversity of citizenship, and the plaintiff is a nonresident, all the defendants must be residents of the district in which the suit is brought. 2. SAME JURISDICTION-SUITS AGAINST SURETY COMPANIES. Section 5 of Act Cong. Aug. 13, 1894, which provides that surety companies "doing business under the provisions of this act" may be sued "in respect thereof" in any federal court having jurisdiction of the action in the district where the bond or undertaking was made or guarantied, applies only to actions on obligations given under the laws of the |