ful change of course, her failure to stop and reverse in the sudden emergency thereby produced should be held error in extremis. If the Conemaugh had come up in a position in which she was passing when the New York ported under assurances from the latter that the Conemaugh's presence was known, it might well be claimed that the circumstances disarmed the master of the latter of suspicion of danger, and entitled the Conemaugh's advance to the most lenient judgment. But such was not the case. The very vigilance of the Conemaugh as she neared the path of the New York recognized the danger of the situation before the New York ported, and her master frankly admits that after she ported he thought "there wasn't much chance to get away from her," when the Conemaugh starboarded hard just after sounding her aların whistles. The apprehension that, if the New York should accept and act upon the passing signals by stopping and reversing, the Conemaugh would have been "in the road of the New York," cannot be admitted to justify the failure to take that precaution. There was nothing to suggest the probability of such action on the part of the New York, but on the contrary her actual course negatived the supposition. There could be but one result if both vessels persisted in going ahead. Every instant of advance made this more manifest. Stopping, if not an as'surance of safety, was manifestly less dangerous than a race for the point of intersection, which at furthest was not more than 700 feet away. It is true that a master is entitled to have time to comprehend the exigencies of the situation before he can be held to have transgressed its law; or, to quote the language of the court in The Emmy Haase, 9 Prob." Div. 81, approved in Maclaren v. Campagnie Francaise, L. R. 9 App. Cas. 649, and The Beryl, 9 Prob. Div. 137, 138 "A man must have time to consider whether he should reverse or not. The court is not bound to hold that a man should exercise his judgment instantaneously. short-but a very short-time must be allowed for that purpose." The time, however, must be measured, not by the watch, but by the circumstances. The conditions in this case, preceding the New York's change of course, were, as has been said, preparatory and cautionary. They so plainly forbade experiment that the duty of stopping and reversing needed no consideration. It seems to me it should have occurred to the officer on deck before his vessel had run a length. The equities of the case are so strongly in favor of the Conemaugh that the conclusion that she was also in fault has been reached with reluctance, and not without considerable doubt, in view of the extent to which adjudged cases of high authority have gone in referring collisions, in circumstances not unlike these, solely to the fault of the flagrant transgressor. The great disparity of fault has invited and received the consideration it merits. But the impossibility of enforcing the great commandment of the law of navigation which calls a halt when risk of collision is involved, compels me to adjudge both vessels at fault; and a decree will be entered to that effect, and the usual order of reference to a commissioner to ascertain and report damages. The costs will be equally divided.

BILLINGS et al. v. ASPEN MINING & SMELTING CO. et al.

(Circuit Court, D. Colorado. January 13, 1893.)

APPEAL-MANDATE-PROCEEDINGS BELOW-JURISDICTION.

It is too late to question the jurisdiction of the circuit court after the return of a mandate from the circuit court of appeals, and the circuit court has no discretion but to enter a decree pursuant to the directions of the mandate, and carry the same into effect.

In Equity. Bill by Margaret Billings and others against the Aspen Mining & Smelting Company and others, asserting the rights of complainants in a mine, as the heirs at law of William James Wood, one of the original locators. The bill was dismissed on the merits in the circuit court, and complainants appealed to the circuit court of appeals, where the decree was reversed, with specific directions as to the decree to be entered below. See 51 Fed. Rep. 338, 2 C. C. A. 252. Thereafter defendants petitioned for a rehearing, which was denied. 52 Fed. Rep. 250, 3 C. C. A. 69. The mandate having been filed in the circuit court, the defendants now seek by motion to question the jurisdiction of the court to proceed further in the cause. Motions overruled.

T. A. Green, for complainants.

E. O. Wolcott and J. F. Vaile, for respondent Wheeler.

Aaron Heims, for respondent Aspen Mining & Smelting Company.

RINER, District Judge. The motions filed by the defendants seek to question the jurisdiction of this court to further proceed in the cause, and to order an accounting as directed by the mandate of the court of appeals of this circuit. That these objections come too late has long since been settled by the supreme court, and it requires but a reference to one or two decisions of that court to dispose of these motions.

In the case of Skillern's Ex'rs v. May's Ex'rs, 6 Cranch, 267, the identical question was passed upon by the supreme court. The syllabus is in the following language:

"It is too late to question the jurisdiction of the circuit court, after the cause has been sent back by mandate."

And in the opinion, which is very short,—I will read it,—the court say:

"This court, after consideration, directed the following opinion to be certified to the court below, viz.: 'It appearing that the merits of this cause had been finally decided in this court, and that its mandate required only the execution of its decree, it is the opinion of this court that the circuit court is bound to carry that decree into execution, although the jurisdiction of that court be not alleged in the pleadings.'

To the same effect is a case in 14 Pet. 51,-the case of West v. Brashear. The syllabus in this case is as follows:

"The mandate of the supreme court to the circuit court must be its guide in executing the judgment or the decree on which it is issued. The mandate is the judgment of the supreme court transmitted to the circuit court; and where the direction contained in it is precise and unambiguous, it is the duty of the circuit court to carry it into execution, and not to look elsewhere for authority to change its meaning."

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Another case, which goes perhaps to still greater length upon the same question, is the case of Sibbald v. U. S., 12 Pet. 488. syllabus states very clearly the point decided by the court:

"When the supreme court have executed their power in a case before them, and their final decree or judgment requires some further act to be done, it cannot issue an execution, but will send a special mandate to the court below to award it. Whatever was before the court, and is disposed of, is considered finally settled. The inferior court is bound by the decree, as the law of the case, and must carry it into execution according to the mandate. They can examine it for no other purpose than execution, or give any other or further relief, or review it upon any matter decided on appeal, for error apparent, or intermeddle with it further than to settle so much as has been remanded."

These cases settle the question beyond all controversy that this question, if raised at all, should have been raised in the court of appeals.

There is another case-Stewart v. Salamon, 97 U. S. 362, opinion by Chief Justice Waite-where it seems that the circuit court followed the mandate of the supreme court, and an appeal was taken from its decision. The supreme court, in the opinion, say:

"The rights of the parties in the subject-matter of the suit were finally determined upon the original appeal, and all that remained for the circuit court to do was to enter a decree in accordance with our instructions and carry it into effect."

The above cases, I think, settle the disposition of these motions. They will have to be denied.

GREENE v. CITY OF TACOMA et al.

(Circuit Court, D. Washington, W. D. December 15, 1892.)

AMOUNT IN CONTROVERSY

1. CIRCUIT COURT — JURISDICTION - FOLLOWING STATE PRACTICE. Under the provisions of the Washington Code, which, by Rev. St. § 914, operate as rules of practice in actions at law in the federal courts in that state, an allegation, in a complaint in ejectment in the United States circuit court, as to the value of the property in controversy, is material, and, wheu denied in the answer, raises an issue; and consequently. to sustain a judgment for plaintiff, the court must, where the action is tried without a jury, specially find that the value exceeds $2,000. Roberts v. Lewis, 12 Sup. Ct. Rep. 781, 144 U. S. 653, followed, notwithstanding Bank v. Hamor, 1 C. C. A. 153, 49 Fed. Rep. 45, and 7 U. S. App. 69, contra.

2. SAME-VALUE OF PREMISES IN EJECTMENT.

In ejectment against a city, which has projected a street through plaintiff's land, and an electric railway company using such street, the value of the land in controversy, for the purpose of determining the jurisdiction of the court, is, as to such railway company, not that of the land necessary for its tracks and for the posts supporting the electric wires, but the value of the whole street, where such company has not disclaimed as to any part of the demanded premises, and the pleadings show that all the ground within the street is in controversy.

At Law. Action of ejectment by Lillian I. Greene against the city of Tacoma, Tacoma Railway & Motor Company, and Steilacoom Railway Company. Judgment for plaintiff.

For decision overruling demurrer to complaint, see 51 Fed. Rep. 622.

J. C. Stallcup, for plaintiff.

F. H. Murray and Crowley & Sullivan, for defendants.

HANFORD, District Judge. The plaintiff is the owner of one acre of land situated in the city of Tacoma, and this action is to recover possession of a part of said acre, which the city has without legal authority taken possession of in the extension of one of the streets of the city. The Tacoma Railway & Motor Company is operating a street railway in said street. Said defendants have answered, denying the plaintiff's title, and denying the allegations of diverse citizenship and value, upon which the right of the plaintiff to sue in this court depends, and also setting forth certain affirmative defenses. By a written stipulation a jury was waived, and the case has been argued and submitted to the court upon the pleadings and evidence. There is no lack of evidence, nor conflict, as to the facts necessary to establish the plaintiff's title, nor as to the diverse citizenship of the parties; and to sustain the affirmative defenses pleaded by evidence the defendants have wholly failed.

The code of this state governing procedure in civil actions requires that the plaintiff's complaint shall contain a plain and concise statement of the facts constituting the cause of action, and allows the defendant to demur to the complaint if it appears upon the face thereof that the court in which an action is brought has no jurisdiction of the parties or of the subject-matter of the action. If, in fact, the court is without jurisdiction, but the defect does not affirmatively appear on the face of the complaint, such defect may be pleaded in the answer. A defendant may, in an answer, traverse the complaint by a general denial, or by a specific denial of the particular allegations which he wishes to controvert, and also set forth as many affirmative defenses as he may have. Section 914, Rev. St., in effect, makes these provisions of the Code operate as rules of prac tice in this court in actions at law, and dispenses with the necessity for a plea in abatement before answering to the merits when the jurisdiction of the court is contested. Under this system of practice, the allegation in a complaint as to the value of the property in controversy is material, and a denial of it in the answer raises an issue. Hence, to sustain the jurisdiction and support a judgment in favor of a plaintiff, this court must, in a common-law action tried without a jury, in which there is such an issue, make a special finding that the value of the property in controversy exceeds $2,000. Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. Rep. 781. The decision of the supreme court in the case just cited was rendered after the decision of the circuit court of appeals for this circuit in Bank v. Hamor, 7 U. S. App. 69, 1 C. C. A. 153, and 49 Fed. Rep. 45, and, in so far as the two decisions are inconsistent with each other, the former must be deferred to, being a declaration of the law by the highest authority. According to my understanding of the decision in Roberts v. Lewis, rule 7 of this court, which requires matter in abatement to be pleaded separately before answering to the merits, is not applicable to actions at common law.

To prove that the property in controversy is worth more than $2,000, the plaintiff called four witnesses, whose testimony is to the effect that the land taken by the city is of equal value with other portions of the acre, and their estimates as to the value of the entire acre vary from $7,000 to $8,000. This is met by an array of witnesses, called by the defendants, giving estimates of value of the entire acre, varying from $1,500 to $4,500. It is apparent to me that neither party called all the witnesses who could have been found to give a favorable estimate, therefore I give but little consideration to the fact that the greater number of witnesses examined were called by the defendants. It is also apparent from the testimony that the real value of the property is, on account of its situation and unimproved and unproductive condition, a matter of uncertainty. This land is part of the 60-acre tract involved in the partition suit of McDonald v. . Donaldson, (recently decided in this court,) 47 Fed. Rep. 765. The price which the plaintiff paid for her property while the title was snarled, as shown by said decision, and before the partition made pursuant thereto, is manifestly no criterion of value. Some of the witnesses for the defendants confessedly rate the value of all of said 60-acre tract below that of other lands of no greater intrinsic value, on account of circumstances incident to the disputes and litigation concerning the title, which circumstances cannot, with fairness, be taken into account in estimating the value for the purpose of determining the question of jurisdiction, because the matters referred to can have only a temporary effect. Mr. Howell, who was called as a witness in behalf of the plaintiff, and Mr. Cavender, who was called by the defendants, impressed me as being equally candid, intelligent, and disinterested. The lowest estimates made by them, added together and divided by two, produces the sum of $5,500, which, in my judgment, is as fair an estimate of the value of the whole acre as can be made from the evidence in the case; and three eighths of this amount, to wit, $2,062.50, is the amount which I find to be the value of the property in controversy.

One of the points in the argument of counsel for the railway company is that only the land actually necessary for its track and the posts which support its electric wires should be taken into account in the estimate of value for the purpose of determining the jurisdiction as to said defendant. But the plaintiff has not subdivided the premises, and the law authorizes her to join as defendants all parties actually united in withholding possession from her. The railway company has not disclaimed as to any part of the demanded premises, but defends for the whole. The pleadings must show what is in controversy, and in this case do show that all the ground within the street is in controversy; and from the evidence I find that the value thereof is above the amount fixed as the limit of jurisdiction in this court. Judgment for plaintiff, with nominal damages and costs.