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lace window curtains and other lace articles; handkerchiefs, napkins * * * and other articles, made wholly or in part of lace, or in imitation of lace," etc. The Board of General Appraisers found as a fact that the goods in question are ornamented by withdrawing, etc, "so as to produce lace or effects in imitation of lace." We concur with the Circuit Court in the conclusion that this finding cannot be sustained upon the record. The testimony is undisputed that they are not lace. No witness testified that the effect of the ornamentation was in imitation of lace, while, on the contrary, witnesses who said they dealt largely in laces, and were familiar with all sorts and kinds of lace, testified that the "effects" are not in imitation of any kind of lace known to them. Moreover, Congress in this very act seems to have understood that ornamentation by drawn threads was distinct from imitations of lace. As has been pointed out, paragraph 339 provides for "handkerchiefs * * * made wholly or in part * * * in imitation of lace," while paragraph 388 (Schedule L, 30 Stat. 186 [U. S. Comp. St. 1901, p. 1670]) provides for "handkerchiefs * [which] have drawn threads or are embroidered in any manner."

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The decision of the Circuit Court is affirmed.

INTERNATIONAL TRUST CO. v. WEEKS.

(Circuit Court of Appeals, First Circuit. May 10, 1905.)

No. 572.

1. LANDLORD AND TENANT-LEASE -COVENANTS-BREACH-ACTIONS-INSTRUCTIONS-REQUEST.

Where, in an action for breach of a covenant in a lease of property occupied by a bank, the court charged that the lessor, on the insolvency of the bank, might have terminated the entire contract, or, under a covenant in the lease, might have relet the premises at the risk of the lessee, in which case the lessee or its agent was responsible for whatever amounts the lessor should not receive from tenants to whom the premises were let from time to time, but that the lessor was bound to manifest such election within a reasonable time, and exercise reasonable care to relet, it was not error for the court to refuse a request to charge that on the insolvency of the bank the lessor was entitled to enter the premises as of its former estate, and, at its discretion, to relet at the risk of the lessee bank, in which case the bank would remain liable for the residue of the term for the rent stipulated, less such amounts as should be collected by plaintiff for the rent or use and occupation of the premises, or any part thereof.

2. SAME-NOTICE.

It was not error for the court to refuse to charge that, in order to hold the lessee bank liable for the amount of the rent for the residue of the term, it was not obligatory on plaintiff to notify the bank of its election to do so.

In Error to the Circuit Court of the United States for the District of Massachusetts.

The International Trust Company brought action against John W. Weeks, shareholders' agent of the Broadway National Bank, on a covenant in a lease of a part of a building previously occupied by the bank before insolvency.

August 11, 1898, Henry Parkman and others, predecessors in title of the plaintiff, executed a written lease of the premises to the bank for a term of 10 years from April 1, 1899, at an annual rental of $6,000; the lease containing the following clause:

"Provided, always, and these presents are upon this condition, that if the said lessee or its successors or assigns do or shall neglect or fail to perform and observe any or either of the covenants contained in this instrument. which on its or their part are to be performed, or if the said lessee shall be declared bankrupt or insolvent according to law, or if any assignment shall be made of its property for the benefit of creditors, then and in either of the said cases the lessors, or those having their estate in the said premises, lawfully may, immediately or at any time thereafter, and whilst such neglect or default continues, and without further notice or demand, enter into and upon the said premises or any part thereof, in the name of the whole, and repossess the same as of their former estate, and expel the said lessee and those claiming under it, and remove its effects (forcibly, if necessary), without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant; and thereupon the lessors may, at their discretion, relet the premises at the risk of the lessee, who shall remain for the residue of said term responsible for the rent herein reserved and shall be credited with such amounts only as shall be by the lessors actually realized." On March 29, 1899, Henry Parkman and others sold the building to the plaintiff trust company, and on December 16, 1899, the lessee bank became insolvent, and the Comptroller of the Currency was appointed a receiver. On February 15, 1900, the Comptroller released the estate of the bank to the defendant, as the stockholders' agent, and between December 16, 1899, and February 5, 1900, plaintiff entered upon the premises, and repossessed itself of the same as of its former estate. The demised premises were occupied by the receiver, and afterwards by the stockholders' agent, from the time of the failure of the bank up to and including May 18, 1900, and full compensation therefor to the amount of the rent referred to in the lease was paid to the plaintiff. This occupancy and payment under an agreement between the parties was not to affect or prejudice their respective legal rights.

Pursuant to the direction of the Court of Appeals, the court, among other things, charged the jury that the owner of the property, having entered into possession, might then decide to terminate the contract, not merely the lease, but the mutual obligations of the parties, so far as the future was concerned, for all purposes whatsoever (in other words, it might have terminated the lease in the usual sense in which it is understood a lease is terminated), or it might, as said in the lease, relet the premises at the risk of the lessee, holding the lessor (that is, the stockholders' agent) responsible for whatever amounts they should not receive from the tenants to whom the premises were let from time to time. The plaintiff also had a right to elect which of those things it would do, but, in order to make defendant liable under such provision of the lease, plaintiff, must, within a reasonable time after entering into possession, have made its election to relet, and manifested that election by a reasonable attempt to do so. But defendant was not bound to tender plaintiff a certain trust company as a tenant, unless plaintiff had elected to let the property at the risk of the bank. Assuming that plaintiff had taken possession of the premises under such circumstances that, in accordance with the terms of the lease, it had a right to sublet at the risk of the bank or its agent, then the jury must find, in order to find for plaintiff, that it made honest and reasonable efforts to relet; that its efforts in that direction were those which a reasonable landowner, under the circumstances, would exercise. "You see that these two questions are: First, has the defendant proved by reasonable preponderance of the evidence that it elected to relet the premises, and seasonably manifested that election? And, secondly, has it used reasonable care in subletting or reletting the property? Upon either of these topics, if the plaintiff has not satisfied you by the fair preponderance of the evidence in the case, as I have explained to you, your verdict must be for the defendant; otherwise your verdict will be for the plaintiff."

Plaintiff requested the court to charge: (1) That, upon the insolvency of the lessee bank, plaintiff was entitled to enter upon the premises and to repossess the same as of its former estate, and, at its discretion, to relet the premises at the risk of the lessee bank, in which case the bank would remain liable under its covenant to that effect for the residue of the term for the amount stipulated as rent in the lease, less such amounts as shall be collected by the plaintiff for the rent or use and occupation of the premises, or any part thereof. (2) That, in order to hold the lessee bank liable for the amount of the rent for the residue of the term under such covenant, it was not obligatory upon plaintiff to notify the bank of its election so to do. (3) That, in order to hold the lessee bank liable for the amount of the rent for the residue of the term under such covenant, it was not obligatory on plaintiff to relet the premises, or to attempt to relet them. The requests being refused, and the verdict being for defendant, plaintiff severally assigned as errors the court's refusals so to rule.

Robert M. Morse (William M. Richardson, on the brief), for plaintiff in error.

Eugene P. Carver and Edward E. Blodgett (G. Philip Wardner, on the brief), for defendant in error.

Before COLT and LOWELL, Circuit Judges, and BROWN, District Judge.

PER CURIAM. We find no substantial question presented by the record in this case which was not disposed of by our opinion passed down October 6, 1903, in Weeks v. International Trust Company, 125 Fed. 370, 60 C. C. A. 236. The third assignment of error raises again the question there decided. No error is shown by the first and second assignments, as the law bearing on the subject was sufficiently and correctly stated by the learned judge in his charge. The judgment of the Circuit Court is affirmed, and the defendant in error recovers costs in this court.

ROGERS SAND CO. v. PITTSBURGH, FT. W. & C. RY. CO.

(Circuit Court of Appeals, Third Circuit. June 23, 1905.)

No. 15.

1. NAVIGABLE WATERS-BRIDGES-LAWFULNESS OF STRUCTURE.

A bridge across a navigable stream built under authority given by the state prior to the enactment of any federal legislation on the subject is a lawful structure.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 74.]

2. SAME-RIGHT TO REBUILD LAWFUL BRIDGE--TEMPORARY STRUCTURES. The right to maintain a railroad bridge lawfully built across a navigable stream carries the right to rebuild the same in whole or in part when required for the safety of travel and transportation, and also the right to build such temporary structures in the stream as may be necessary to prevent the interruption of the operation of the railroad, and to maintain the same for a reasonable length of time.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 99.]

3. SAME-NECESSITY OF CONSENT OF CONGRESS.

Neither the provision of section 9 of the river and harbor act of March 3, 1899, as amended in 1900 (30 Stat. 1150 [U. S. Comp. St. 1901

p. 3540]), that "it shall not be lawful to construct or commence the construction of any bridge * * * until the consent of Congress to the building of such structures shall have been obtained," nor of section 10, prohibiting "the creation of any obstruction not affirmatively authorized by Congress," applies to the rebuilding of a bridge which was lawfully in existence when the act was passed.

Appeal from the District Court of the United States for the Western District of Pennsylvania.

J. S. Ferguson, for appellant.
W. S. Dalzell, for appellee.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

DALLAS, Circuit Judge. This is an appeal from a decree in admiralty dismissing the libel of the appellant, by which a recovery was sought for injuries sustained by the steamboat Margaret in consequence of her collision upon December 24, 1902, with a construction which the appellee had placed in the Allegheny river at a point between the cities of Pittsburgh and Allegheny. The contention of the appellant is that:

"The bridge in question-at least that portion of it which caused the injury-was an illegal structure and a public nuisance, because, first, inasmuch as the Allegheny river was a navigable stream, the navigable portion of which did not lie wholly within the limits of a single state, no bridge could be built across it without the authority of Congress; second, that, if this position was not tenable, the bridge was an illegal structure, because it was not built according to the plans approved by the Chief of Engineers and Secretary of War."

This contention was properly rejected by the court below. The bridge as originally built was unquestionably a lawful structure. It was authorized by the General Assembly of Pennsylvania prior to the enactment of any federal legislation upon the subject, and, "until Congress intervenes in such cases and exercises its authority, the power of the state is plenary." It was used for years without complaint from any one, so far as the record discloses; and the particular constructions which are alleged to have caused the accident, constituted a part of the work of its rebuilding about 50 feet further down the river. The right to do this work resulted from the right to maintain the bridge, and from the duty imposed by law upon every railroad company to keep its bridges at all times safe, and to adequately provide for the convenience of the public. The learned. proctors for the appellant insist that their position is supported by sections 7 and 10 of the river and harbor act of 1899 (Act March 3, 1899, c. 425, 30 Stat. 1150, 1151 [U. S. Comp. St. 1901, pp. 3527, 3541]); but, in our opinion, neither the provision of section 9, "that it shall not be lawful to construct or commence the construction of any bridge, * until the consent of Congress to the building of such structures shall have been obtained," nor the prohibition by section 10 of "the creation of any obstruction not affirmatively authorized by Congress," is applicable to the rebuilding of a bridge which, as in this instance, was lawfully in existence when the act was passed. Hamilton v. Vicksburg, etc., Railroad Co., 119 U. S. 281, 7 Sup. Ct. 206, 30 L. Ed. 393. Whether the application which

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was made by the appellee to the Secretary of War for approval of its plans was or was not required by any part of this statute need not be decided. The fact is that a permit was obtained, and its conditions complied with, but with certain necessary modifications which were accepted by the War Department “as a virtual compliance with the permit already issued.'

The right to reconstruct the bridge was coupled with the duty to exercise due care not to interfere unnecessarily with the navigation of the stream, but we think that the finding of the learned judge that this duty had not been violated by the appellee was correct. In Hamilton v. Vicksburg Railroad Co., supra, it was held that a railroad company, in rebuilding a bridge which is a connecting link of its road, may construct a temporary structure and maintain it for a reasonable time, so that the operation of the road shall not be interrupted; and the rule thus established seems to us to be plainly applicable to the facts of this case.

After attentive consideration of the record, we concur in the views expressed by the learned judge below, and for the reasons we have indicated, but which are more fully presented in his opinion, the judgment of the District Court is affirmed.

NOTE. The following is the opinion of Buffington, District Judge, in the District Court:

BUFFINGTON, District Judge. This is a libel in admiralty filed by the Rogers Sand Company against the Pittsburgh, Ft. Wayne & Chicago Railway Company to recover damages sustained by the libelant by the sinking of its steamboat Margaret on December 24, 1902. At about eleven o'clock on the morning of that day the vessel, while passing under the Ft. Wayne Bridge spanning the Allegheny river between Pittsburgh and Allegheny City, struck some piling, and sank one of the barges it was towing. It was alleged that as a result of this accident the Margaret, before she could right herself, was carried by the heavy current against the pier of the bridge immediately below the one in question and broken in two. After an examination of the law and facts, we have reached the following conclusions:

The state of Pennsylvania, by its act of 21st March, 1789, L. B. P. 245, and the state of New York by chapter 78 of the act of March 31, 1807, recognized the Allegheny river as a navigable stream. Across the same, as stated in libelant's brief, "the railroad bridge was built many years ago under authority of the Legislature of the state of Pennsylvania." This legislative sanction and the building of the bridge antedated the passage of the river and harbor bill cited below, and, in the absence of federal legislation on the subject, the consent of Congress to such bridge is to be implied. A right to build and maintain a bridge necessarily implies a right to reconstruct. Central Trust Company v. Wabash, etc. (C. C.) 32 Fed 568. Consequently, when the railroad company had to reconstruct the bridge, no empowering act of Congress was necessary, for, having already the implied "consent of Congress to the building of such structure," upon the rebuilding thereof the approvals of the chief of engineers and the Secretary of War alone were sufficient, as provided by section 9 of the river and harbor act of March 3, 1899, as amended. After submission of plans by the railroad to the War Department, a permit was issued September 1, 1900. which, inter alia, provided: "(1) That said Railroad Company shall, in the reconstruction of the bridge, remove one of the piers in the channel on the south side of the river so as to

give a clear span of three hundred and twenty feet (320 feet). * * (3) That the engineer officer of the United States army, in charge of the locality in which the bridge is to be rebuilt, may supervise its reconstruction, in order that said plans as herein modified, shall be complied with." As the work proceeded, certain changes, which are noted in the correspondence below, 'were