got into the hold, valve D was only open three-fourths of a turn out of a possible opening of two and a half turns, and it seems evident that merely looking at the valves in a perfunctory way would not have shown this opening.

Much stress is laid in the claimant's argument upon the fact that no noticeable steam escaped into the hold after the vessel sailed and hence these valves must have been closed until the steamer was in the vicinity of New York and testimony was given to show that the box E had been forced open. I consider it much more likely that if the box was forced open, it was for the purpose of getting at the valves to close them, when the escape of steam was discovered, rather than with a view of opening them to improperly admit the steam. A similar feature of the case is the contention on the part of the steamer's witnesses that if the valves had not been closed before sailing, the escaping steam would have been observed by those working in the hold before it was finally closed for the voyage, but such testimony cannot have much weight because of its argumentative character. unproved circumstances-e. g. the quantity of admitted steam; the opportunity for condensation and for escape through the open hatches; the vigilance of those having opportunity for notice; their inclination to report, etc.--might affect a consideration of the matter, if proved, to let it have any serious bearing, without them. Moreover, it is not at all clear that this hold was not closed before the vessel left port. Several witnesses, whose testimony I have already commented upon, have stated that the hold was open for the reception of cargo after the hatches were on the other holds, but the log shows that this hold was finished at 10 o'clock, while other holds were not finished for half an hour later, and if this were the fact, argument relative to the probability of escaping steam being observed before the vessel sailed loses much of its force. It must be borne in mind, too, that this system of pipes was controlled by a special valve in the engine room. The engineer in charge testified that he turned off the steam by this valve shortly after leaving London. Therefore, although the valve D and those in box E were open when the vessel sailed, there would have been no steam admitted to the hold during the voyage until it was turned on by the opening of the engine room valve, when the steamer neared Sandy Hook. It was said that at this time the carpenter complained that he could not get steam enough to work the windlass. An attempted explanation of such a condition was made. by a statement on the part of the engineer that the windlass journals. get rusted with salt water, rendering it difficult to turn them at first, but it seems more probable that the difficulty was caused by a deficiency of steam at the windlass, owing to its escape into the hold.

Altogether, I conclude that the valves were not properly closed before the steamer sailed.

The claimant has strenuously urged that even if this conclusion should be reached, there can be no recovery under the adjudicated cases, citing The Mexican Prince (D. C.) 82 Fed. 484; Id., 34 C. C. A. 168, 91 Fed. 1003; The Mexican Prince, 174 U. S. 801, 19 Sup. Ct. 887, 43 L. Ed. 1187; The Sandfield (D. C.) 79 Fed. 371; Id.,

116 F.-5

34 C. C. A. 612, 92 Fed. 663; The British King (D. C.) 89 Fed. 872; Id., 35 C. C. A. 159, 92 Fed. 1018; The Glenochil [1896] Prob. 10, II; Blackburn v. Navigation Co., Shipping Gazette (Dec. 6, 1901) p. 777; The Silvia (D. C.) 64 Fed. 607; Id., 15 C. C. A. 362, 68 Fed. 230; Id., 171 U. S. 462, 19 Sup. Ct. 7, 43 L. Ed. 241; The Strathdon (D. C.) 89 Fed. 374; Carv. Carr. by Sea (3d Ed.) pp. 128, 129, § 103E. I do not deem it necessary to analyze and distinguish these authorities, because the principle here involved has been recently passed upon by the Supreme Court in the case of International Nav. Co. v. Farr & Bailey Mfg. Co. (decided April 22, 1901) 181 U. S. 218, 21 Sup. Ct. 591, 45 L. Ed. 830. In that case the carrier was held liable. There, the ports of the vessel were inspected before the vessel sailed and were believed to be closed, but the covers of one of the ports were actually open, with the result that, without any severe weather or accident happening, the sea found access through the port to the cargo and injured it. The Silvia, supra, which was a case of the outside cover of a port hole being left open at time of sailing, and held not to constitute unseaworthiness, was distinguished on the ground that there, the cover was designedly left open at the time of sailing, the weather being fair, for the purpose of lighting the cargo compartment, and the negligence consisted of failing to close it, as could easily have been done, when bad weather came on, which was a fault of management under the Act and did not constitute unseaworthiness. In the case being then considered, the covers were intended to be securely closed before any cargo was received and the person whose duty it was to close the ports, or see that they were closed, supposed that had been properly done and that hatches were closed with no expectation that any more attention would be given to them during the voyage, but in fact the port in question was not closed; hence the vessel was found to have been unseaworthy and not within the exemption from liability provided by the Act. It was there said by Mr. Chief Justice Fuller, in writing the opinion of the court (pages 224–226, 181 U. S., page 593, 21 Sup. Ct., and page 830, 45 L. Ed.):

"But it is contended that in spite of the fact that the condition of the port hole rendered the ship unseaworthy when she sailed, the omission to securely cover it was a fault or error in management and within the exemption of the third section of the Harter Act. The proposition is that if an owner provides a vessel properly constructed and equipped, he is exempted from liability no matter how unseaworthy the vessel may actually be, at the commencement of the voyage, through negligent omission or commission in the use of the equipment by the owner's servants. Or, to put it in another way. If the unseaworthiness is not the result of error or fault in management, the third section does not apply, and even if it were, the exemption still cannot obtain unless it appears that the owner used due diligence to make the vessel seaworthy. And it is said that the owner does exercise such diligence by providing a vessel properly constructed and equipped, and that while he is responsible for the misuse or nonuse of the structure or equipment by his 'shore' agents, he exercises due diligence by the selection of competent 'sea' agents, and that he is not responsible for the acts of the latter, although they produce unseaworthiness before the commencement of the voyage.

We cannot accede to a view which so completely destroys the general rule that seaworthiness at the commencement of the voyage is a condition

precedent, and that fault in management is no defence when there is lack of due diligence before the vessel breaks ground.

We do not think that a ship owner exercises due diligence within the meaning of the act by merely furnishing proper structure and equipment, for the diligence required is diligence to make the ship in all respects seaworthy, and that, in our judgment, means due diligence on the part of the owners' servants in the use of the equipment before the commencement of the voyage and until it is actually commenced.

The ruling in Dobell & Co. v. Steamship Rossmore Co., [1895] 2 Q. B. 408, is in point. The Rossmore left Baltimore with a port improperly caulked, which rendered the vessel unseaworthy, through the negligence of the ship's carpenter, who was a competent person. Sea water entered through this port and damaged the cargo. The bill of lading incorporated the Harter Act by reference, and it was held, as correctly stated in the syllabus, that 'to exempt the ship owner from liability it was not sufficient merely to show that he had personally exercised due diligence to make the vessel seaworthy, but that it must be shown that those persons whom he employed to act for him in this respect had exercised due diligence;' and that, therefore, the negligence of the ship's carpenter prevented the exemption from applying, and the ship owner was liable.

The obligation of the owner is, in the language of section two of the act, 'to exercise due diligence, to properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage;' and that obligation was not discharged when this vessel sailed with a hole in her side, under the circumstances disclosed, whether the duty of seeing that it was closed devolved on officers of the ship, or the foreman of the stevedores, or on all of them. The obligation was to use due diligence to make her seaworthy before she started on her voyage and the law recognizes no distinction founded on the character of the servants employed to accomplish that result.

We repeat that even if the loss occur through fault or error in management. the exemption cannot be availed of unless the vessel was seaworthy when she sailed, or due diligence to make her so had been exercised, and it is for the owner to establish the existence of one or the other of these conditions. The word 'management' is not used without limitation, and is not, therefore, applicable in a general sense as well before as after sailing."

In the case at bar, it was the intention that the valves should be closed before the vessel sailed and there was no expectation of their use after that time, until the vessel should be near her destination. At that time, the steam was turned on at the engine room without investigation of the valves D and in box E, because it was supposed that they had been tightly closed. I consider that this case falls within the principle of International Nav. Co. v. Farr & Bailey Mfg. Co.; also of The Manitoba (D. C.) 104 Fed. 145, where Judge Brown had previously reached practically the same conclusion as the Supreme Court with respect to the liability of the carrier upon a somewhat similar state of facts.

It has been urged by the libellants that even if the valves were tightly closed when the vessel sailed, that the claimant cannot succeed, because the Act does not exempt the carrier from mismanagement. during the voyage in the care or custody of cargo and further that the fire apparatus could not in any sense be deemed as having anything to do with the navigation or management of the vessel, but in view of the result at which I have arrived, I do not deem it necessary to consider such contention.

Decree for the libellants, with an order of reference.

In re WIESSNER.

(District Court, E. D. New York. May 14, 1902.)

BANKRUPTCY-PREMISES OCCUPIED BY TRUSTEE-RIGHT TO RECOVER RENTAL A receiver appointed for the property of a bankrupt took possession of the premises occupied by the bankrupt under the supposition that they were a part of the bankrupt's estate, and later such premises were occupied by the trustee. The premises were in fact leased to a corporation with which the bankrupt was connected. The lessor made no demand for possession, but subsequently commenced an action in a state court against the corporation in which judgment was recovered for arrearage of rent and for possession, and possession was surrendered to the officer thereunder. Held, that the lessor was estopped by such proceedings from recovering rental from the trustee.

In Bankruptcy. On petition for an order directing the trustee to pay rental for premises occupied by him.

Byram L. Winters, for petitioner.

Kenneson, Crain, Emley & Rubino, for trustee.

THOMAS, District Judge. The petition of Margaretha Wiessner for an order directing the trustee to pay the petitioner the reasonable value of the use and occupation by the trustee of certain premises is hereby denied. On the 6th of June, 1900, the receiver took possession of the premises upon the supposition that they belonged to the bankrupt, and continued therein until August 7, 1900; whereupon the trustee, having been appointed, occupied the premises, in connection with the main property, until the 19th of June, 1901. Possession of the premises was not demanded by the petitioner or by any person in her behalf. It appears that on May 22, 1900, the petitioner leased the premises to the Oscar E. A. Wiessner Manufacturing Company for the period of 10 years from May 22, 1900, at an annual rent of $2,400; that on September 17, 1901, one Charles M. Pracht, an agent of Margaretha Wiessner, filed a petition in the municipal court of the city of New York, wherein he stated that on September 1, 1901, the lessee named owed the petitioner $2,200, as eleven months' rent for the premises, from October 1, 1900, to September 1, 1901, and asked that such proceedings be taken as should dispossess the lessee from said premises; that pursuant to such proceedings a judgment was, on September 20, 1901, rendered, finding that $2,200 was due as rent from the lessee to the petitioner, and decreeing that the petitioner should have possession of the premises, and that a warrant of attachment should issue to remove the said tenant therefrom; that such warrant was issued, and on September 21st the return was duly made, stating that pursuant to the warrant the marshal had put the petitioner in full possession of the premises. The proceedings dispossessing the lessee were in proper form. There is no evidence that the petitioner ever disclaimed the same, until it was found that such action estopped a recovery under the present petition. Even then the petitioner offered no evidence until this motion had been argued, whereupon an affidavit was offered tending to show that the summary proceedings were without petitioner's authority. Such a contention cannot be maintained to vitiate the verity of the proceedings, the benefit of which the petitioner has had.

In re BELLAH.

(District Court, D. Delaware. February 25, 1902.)

1. INVOLUNTARY BANKRUPTCY-PETITION.

An averment in a petition in involuntary bankruptcy that the defendant at a certain time received a specified sum of money from a specified source, which sum "he has ever since concealed and secreted with intent to hinder, delay or defraud his creditors", is not defective for want of particularity; the manner and details of the concealment being matters of evidence and not of averment.

2. SAME-FRAUDULENT Concealment.

Fraudulent concealment may be shown as well by circumstantial as by direct evidence, and where the evidence is wholly circumstantial, it is impossible, and therefore unnecessary, to aver in the petition the precise details of the act of concealment.

8. SAME-VERIFICATION OF PETITION.

While a petition in involuntary bankruptcy must be signed and verified in duplicate by the petitioning creditors, or those authorized to represent them, the bankruptcy act does not provide or require that such petition shall be verified by a formal affidavit or an affidavit of any sort; the only provision applicable to the verification of such petition being that "all pleadings setting up matters of fact shall be verified under oath."

4 SAME-SIGNATURE OF CORPORATION.

A corporation can act only through its officers, or agents, and where its name is subscribed by an individual to a petition in involuntary bankruptcy, and the petition purports to be verified by the same person, it is necessary that such person should set forth under oath or affirmation that he was authorized to sign and verify the petition on behalf of the corporation. The omission of such an averment, unless remedied, is fatal; but is not an incurable defect, jurisdictional or otherwise.

5. SAME-ERROR IN JURAT.

A mere clerical error in the jurat of one of the duplicate originals of a petition in involuntary bankruptcy can be cured by amendment. 6. SAME-AMENDMENT OF PETITION.

Rule 11 of the general orders in bankruptcy deals with amendments to a petition and schedules, but was not intended to abrogate or restrict the general power of amendment in other respects vested in the court. 7. SAME-DEFECTS IN PETITION.

In accordance with the elementary rule that in proceeding on a statute the pleader must negative an exception in the enacting clause, a petition in involuntary bankruptcy against an individual is defective if it omits to aver that the defendant was not a wage-earner nor a person engaged chiefly in farming or the tillage of the soil. Such a defect, however, can be corrected by amendment.

(Syllabus by the Court.)

In Bankruptcy.

Henry C. Conrad and Wm. S. Stenger, for creditors.

H. H. Ward, J. E. Smith, and C. W. Smith, for bankrupt.

BRADFORD, District Judge. This is a motion for the dismissal of a petition in involuntary bankruptcy filed against Thomas S. Bellah, April 30, 1901. The first ground assigned in support of the motion is that "said petition in bankruptcy doth not set forth any act of

14 See Bankruptcy, vol. 6, Cent. Dig. § 123.