Opinion of the Court-Deady, J.

[May,

he occupied a place on the forward deck instead of the cabin or the after one. Ordinarily, there was no unusual danger in being there. There was nothing to indicate that passengers were not allowed forward of the pilot-house. Jones does not say that he gave the passengers any warning on the subject on this occasion, though he thinks he did speak of it at some other time in the hearing of the deceased. If this was a dangerous position under ordinary circumstances, it was the duty of the owners of the boat to provide some means of restraining or warning passengers from going there. The fact that on this occasion the deceased and two others stood on this deck just in front of the pilothouse, right under the eye of the pilot, without a word or suggestion from him to the contrary, proves that the position was not regarded by the latter as one of any particular danger.

But it is said that he was negligent in remaining there after the collision was imminent. But that is not at all certain. He might have thought, as one of his companions did, that the safest course was to remain and take the chance of getting on the big boat at the point of collision before the little one was run down. His companion, who jumped overboard, said he did so rather than undertake to get back along the narrow space between the house and gunwale, because he thought the Mikado was going to be sunk.

The evidence is meager and obscure on this point, it only appearing that of the three persons who stood on this deck, one jumped overboard, and another sprang up on the guard of the ferry-boat and was saved, while the deceased, who for ought that appears, was intending and trying to escape in the same way, was caught by the head between the guard and pilot-house, as in the jaws of a vice, and crushed so that he died; and but for the fact that the pilot-house gave way and was pushed overboard, he probably would have been killed outright. However, the deceased having been placed in this dangerous predicament by the fault of the defendants, they are liable for his death, even if it appears that it was possible for him to have escaped unharmed. The law does not require skill, diligence, or good judgment from a person in such a situation or moment of danger and excitement, but regards him as one in extremis, whose conduct, though

1888.]

Opinion of the Court-Deady, J.

erroneous or unwise, it does not consider a fault. (Ladd v. Foster, 31 Fed. Rep. 831, and cases there cited.) The defendants having by their concurrent negligence caused the death of the deceased, are liable in solido for the damages. (Ladd v. Foster, 31 Fed. Rep. 835, and cases there cited.)

The libellant is entitled to a degree against the defendants for the sum of $2,500 and costs and disbursements of the suit.

THE UNITED STATES v. H. SCHNEIDER.

CIRCUIT COURT, DISTRICT of Oregon.

JUNE 4, 1888.

1. ESTOPPEL BY VERDICT. — An estoppel by verdict occurs where each of two causes of action, though not identical, include some identical fact or circumstance, and there is a verdict and judgment in an action on one of them whereby the parties are estopped to allege anything concerning such fact or circumstance contrary to such verdict.

2. VERDICT IN A CRIMINAL ACTION DOES NOT ESTOP PARTIES IN A CIVIL ACTION. A verdict in a criminal action between the United States and S., which necessarily negatives the allegation in the statement of the cause of action, that S. was "a wholesale dealer in malt liquors," does not estop the United States from alleging that fact in a civil action against S. to recover the special taxes due from him as such dealer.

Before DEADY, District Judge.

Mr. Lewis L. McArthur, for the plaintiff.

Mr. Frank V. Drake, for the defendant.

DEADY, J. This action is brought by the United States to recover from the defendant the sum of one hundred and fifty dollars, the sum being the amount of the special tax alleged to be due from the latter as a wholesale dealer in malt liquor, between November 1, 1883, and November 1, 1886, in this district.

On September 19, 1887, the defendant answered the complaint. and denied the material allegations thereof, and on March 9, 1888, he filed a second answer, containing the defense, that the plaintiff is estopped to allege in this action that the defendant was a wholesale dealer in malt liquors between the dates

Opinion of the Court-Deady, J.

[June,

aforesaid, because on the trial of a criminal action heretofore brought by the plaintiff against the defendant, to recover a penalty for the non-payment of these same taxes, in which the defendant pleaded not guilty, the jury, on May 26, 1887, found the defendant not guilty, and the court gave judgment on the verdict accordingly; that on the trial of said action it was admitted that the defendant had not paid any special taxes as alleged in the information, and the case was submitted to the jury by the court on the question of whether the defendant did carry on the business of wholesale dealer in malt liquor, as alleged, and the jury by their verdict, found that he did not.

Section 3244 of the Revised Statutes provides, that wholesale dealers in malt liquors shall pay a special tax of fifty dollars; and section 3242 declares that any person who carries on the business of such dealer without having paid the special tax therefor shall be liable for the payment of the tax, and also a fine of not less than ten dollars nor more than five hundred dollars.

If there is any estoppel in this case, it is not by judgment but by verdict. The causes of action in the criminal and civil are not identical-the one being for a penalty and the other for taxes. Both may be maintained concurrently or successively, and a judgment in the one cannot be pleaded in bar of the other.

Where each of two causes of action, though not identical, include some identical fact or circumstance, and there is a verdict and judgment in an action in one of them, the parties thereto are estopped to allege anything concerning such fact or circumstances contrary to such verdict; and this is called estoppel by verdict. (Bigelow on Estoppel, 48.) It is admitted by the demurrer that the defendant was charged in the criminal action with being a wholesale dealer in malt liquors, and that the finding of the jury therein necessarily contradicted such allegation. This fact is also a material element in this action for taxes. The two actions arise out of exactly the same circumstances. It is material to allege and prove, in either case, that the defendant was a wholesale dealer in malt liquors. And the question now is, can the finding of the fact in the criminal action, that the defendant was not such dealer, be pleaded as an estoppel in this civil action?

1888.]

Opinion of the Court-Deady, J.

As a general rule this cannot be done, for the reason that the parties to the two actions are seldom the same—the criminal one being prosecuted by and in the name of the state, and the civil one, by the party injured, by the act or conduct constituting the crime. (1 Greenleaf on Evidence, sec. 537; 4 Wharton on Evidence, sec. 776.) But it so happens that the parties are the same in both these actions.

Another reason given against the estoppel in such cases is that the rules of decision and the course of proceedings are not the same in the two actions, and therefore different results may properly be reached in the trial of them. (1 Greenleaf on Evidence, sec. 537; 1 Wharton on Evidence, sec. 776.)

Many of the differences in the rule of decision and procedure in criminal and civil actions have been done away since the establishment of this rule. Parties are now competent witnesses in criminal as well as civil cases, at least on their own behalf, and the only material difference in this court is, that in the former case the verdict must be for the defendant, unless the evidence establishes his guilt beyond a reasonable doubt, while in the latter it is given for or against him, according to the preponderance of evidence.

This, in theory at least, is a material difference, and it may be that the same jury on the same evidence acting on this rule would find the defendant was a dealer in malt liquors, as alleged in this civil action, and refuse to do so in a criminal one. Therefore, the United States is not estopped, by the verdict in the criminal action, to allege and prove in this one that the defendant was a wholesale dealer in malt liquors.

The demurrer to the defense is sustained.

Opinion of the Court-Hoffman, J.

[June,

THE UNITED STATES OF AMERICA v. FORTY-EIGHT POUNDS OF RISING STAR TEA, ETC., ETC.

DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA.

-

JUNE 7, 1888.

1. INDIANS-TRADING IN THE INDIAN COUNTRY-ABANDONING RESERVATIONKLAMATH RESERVATION. By act of Congress of April 8, 1864, the President was authorized to set apart not exceeding four tracts of land in California for Indian reservations, and in his discretion to include therein existing reservations. The lands in existing reservations not thus retained were to be sold as therein provided. Four reservations were accordingly set apart, among which the previously existing Klamath reservation was not included; but possession of the latter, which contained about forty square miles, and on which were about two hundred Indians, was retained by the United States, and some steps were taken towards its disposition. Held, that the Klamath reservation was not "Indian country" within the meaning of the Revised Statutes, United States, section 2133, prescribing the penalty for unlicensed trading in the Indian country.

Before HOFFMAN, District Judge.

Mr. J. E. McElrath and Mr. D. T. Sullivan, for claimant.

Mr. John T. Carey, for the United States.

HOFFMAN, J. It is not denied that the claimant traded with the Indians residing on what has been known as the Klamath River reservation in this state.

The question to be considered is, is the land so known, "Indian country" within the meaning of the section referred to.

The Klamath Indian reservation was created by executive order, dated November 16, 1855, pursuant to the act of March 3, 1855. It embraced a tract of land extending twenty miles up the river from its mouth, and one mile in width on each side. of the river.

It would seem from official reports, that during the years following the establishment of the reservation some two thousand five hundred Indians were collected upon it.

In 1861, nearly all its arable lands, with the improvements thereon, were destroyed by floods, and the reservation was rendered almost worthless.

In this condition of affairs, the Indian agent, Mr. Hanson, strongly urged the selection of a new reservation to replace the destroyed Klamath reservation.