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present case of ownership in the plaintiff of the property in question was attended with that presumption. If the proof showed only a special interest in the plaintiff, inconsistent with its ownership, the objection should have been taken in the trial court, where the plaintiff would have had an opportunity to amend his pleading to conform to the proof, and thus have attained the end to be desired in all judicial proceedings, an adjudication upon the merits of the controversy. The objection comes too late when made for the first time here.
When the goods included in cases numbered, respectively, 99 to 106, both inclusive, arrived in San Francisco, Gordon, the purchaser of them, went in person to the customhouse to enter them. There was at the time a regulation in force that the entry should not be made without producing or accounting for the original bill of lading. Gordon accordingly took with him to the customhouse Newhall, the holder of the original bills of lading, covering cases 99 to 106, who there produced them, and thereupon the goods were entered in the name of Gordon. A bond was then given for the payment of the duties, and the goods placed in a bonded warehouse, and a warehouse receipt therefor issued to Newhall. All of this was prior to the attempt on the part of the plaintiff in error to exercise the right of stoppage in transitu. In respect to these goods, we have no difficulty in holding that the transit had ended before the attempt was made to stop them. The goods were sold to and intended for Gordon, doing business in San Francisco. They had left the hands of the carrier, and the place of their deposit was in no way con. nected with their transmission to the purchaser. They had reached their destination, and the purchaser had, by his personal and affirmative act, disposed of the goods, and his assignee had given bond for the payment of the duties upon them, and deposited them in his own name in a bonded warehouse, for which he held the warehouse receipt.
But in respect to the goods contained in cases numbered, respectively, 107 to 110, inclusive, the case is differentThese were still in the hands of the carrier when the plaintiff in error gave notice of and asserted his right of stoppage in transitu, and it becomes necessary, therefore, to consider the objections presented by the fifth assignment of error to the introduction in evidence of the bill of lading covering those cases. The bill of lading was drawn, as has been said, to "E. Hawley, or assigns.” It was not indorsed by Hawley. Consequently, it is urged by plaintiff in error, no title passed to defendants. It is provided by section 2127 of the Civil Code of California as follows:
"Al the title to the freight which the first holder of a bill of lading had when he received it passes to every subsequent indorsee thereof, in good faith, and for value, in the ordinary course of business, with like effect and în like manner as in the case of a bill of exchange."
And by section 2128 it is declared: “When a bill of lading is made 'to bearer,' or in equivalent terms, a siinple transier thereof by delivery conveys the same title as an indorsement."
These sections, read together, as they must be, plainly declare that the title to goods described in bills of lading drawn to order passes by indorsement, drawn to bearer by delivery. There are many cases which hold that the delivery of a negotiable or quasi negotiable instrument, like a bill of lading drawn to order, will vest title without indorsement, as against the person who made delivery without such indorsement; for he is justly held estopped from setting up his own mistake, omission, or fraud to defeat the effect of his own action. The case of St. Paul Roller-Mill Co. v. Great Western Despatch Co., 27 Fed. Rep. 434, referred to in the opinion of the court below, was a case of that character. There the bill of lading was drawn to the order of the shipper, which drew its draft at 15 days' sight, against the flour mentioned in the bill of lading, upon one Whitcomb, of Boston, and forwarded the draft, with the bill of lading attached, unindorsed, to the Tremont National Bank of Boston, for acceptance and collection. Upon Whitcomb's acceptance of the draft, the bank delivered to him the bill of lading, without indorsement, and he afterwards indorsed and transferred the bill of lading to the National Bank of Redemption, for an antecedent debt due from him to that bank. Afterwards, and before the flour arrived in Boston, the shipper, being informed of the insolvency of Whitcomb, notified the carrier not to deliver the flour to him or his assigns; but upon its arrival it was delivered to Whitcomb's assignee, and the shipper thereupon sued the carrier for its conversion. It was urged for the plaintiff that the bill of lading, running to the order of the shipper, and delivered to Whitcomb, without indorsement, carried on its face notice that he held it subject to equities between prior parties; but the court said that it was of no importance that it was delivered unindorsed; that it was the intention of the shipper that its agent (the Tremont Bank) should deliver the bill of lad. ing on acceptance of the draft. It would have been manifestly unjust to have permitted the shipper to take advantage of his own failure to indorse the bill of lading which he delivered, with the intention of carrying the right to the property covered by it. But that is by no means the present case. Here the bill of lading was not drawn to the order of the shipper, the plaintiff in error, but, in effect, to the order of E. Hawley, by whom it was delivered without indorse. ment, and the omission of which the plaintiff seeks to avail himself, in protection of his lien for the unpaid purchase price of the goods, is not his own omission, but that of Hawley. The right of the plaintiff in error to stop the goods in transitu upon discovering the insolvency of the vendee was perfect, not only as against the vendee, but as against all others, except a purchaser for value, taking by indorsement of the bill of lading, in the usual course of business, and without notice. Civil Code Cal. § 2127, supra; Stanton v. Eager, 16 Pick. 476; Akerman v. Humphrey, 1 Car. & P. 56. At least one of these conditions is wanting in the present case, namely, the indorsement by the party in whose favor the bill was drawn. We are therefore of the opinion that the right of the plaintiff in error to retake possession of cases numbered 107 to 110, inclusive, for the protection and enforcement of his vendor's lien, was unaffected by
the transfer of the bill of lading covering them to the defendants. From these views it becomes unnecessary to consider the remain. ing assignments of error. Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.
THATCHER V. GOTTLIEB.
(Circuit Court, D. Colorado. February 18, 1893.) STATUTORY NEW TRIAL-FOLLOWING FORMER DECISION ON WRIT OF ERROR.
Where, on a new trial to determine the title and right of possession of land, under a state statute giving a right to a new trial in such cases, the material facts, as disclosed by the evidence, are substantially the same as the facts on the former trial, and substantially as the facts before the circuit court of appeals on the review of such former trial, the case will be disposed of as indicated by the appellate court.
At Law. Action by Lewis C. Thatcher against Joseph Gottlieb to determine the title and right of possession of land. Plaintiff's motion for a new trial denied.
For decision of circuit court of appeals on writ of error on a judg. ment entered on a former trial, see 51 Fed. Rep. 373, 2 C. C. A. 278.
V. D. Markham and J. W. Mills, for plaintiff.
RINER, District Judge. This case is before the court on motion for a new trial. The case has been three times tried in this court and once in the court of appeals. The first trial resulted in a finding in favor of the plaintiff, and the defendant took a new trial under the statute. On the second trial of the case, judgment having been entered in favor of the plaintiff, the defendant carried the case to the court of appeals, (51 Fed. Rep. 373, 2 C. C. A. 278.) where the judgment of the circuit court was reversed, with directions to enter a judgment for the defendant, which was done, and thereupon the plaintiff took a new trial under the statute, and the case came on again for trial before this court and a jury at the November, 1892, term. At the conclusion of the evidence the court directed the jury to return a verdict for the defendant, which action of the court is now assigned for error, and is made the basis for this motion.
Since the motion was argued, I have examined very carefully the transcript of the record before the court of appeals, and am satisfied that the material facts as disclosed by the evidence upon this trial are substantially the same as they were upon the former trial before this court, and substantially the same as the facts before the court of appeals. When that court held the facts sufficient as a basis for an opinion directing a verdict for the defendant, did it not, in effect, say that the same facts, when again offered in evidence, would be again held sufficient to sustain a like opinion? I think there can be but one answer to this question. In the concluding part of the opinion the court of appeals say:
"Even if it be true that the conveyance made by Annie C. McCormick to Lewis Thatcher terminated the right of the trustee to sell the property, as was held by the trial court,-a question upon which we express no opinion, -it is nevertheless entirely clear that Gottlieb relied upon the advice given him by counsel that the note secured by the trust deed could be lawfully levied upon and sold under execution, and believed that the purchase of the note gave him the right to subject the land to sale for the purpose of paying the debt evidenced thereby. In our judgment, the facts found justify but one conclusion, and that is that, in paying the taxes upon the land since 1879, Gottlieb was clearly acting under color of title obtained in good faith, and has thus become entitled to the land under the provisions of the statute of Colorado."
The facts being substantially the same upon this trial, I think it was clearly the duty of the court to direct a verdict for the defendant. The motion for a new trial will be denied, a judgment entered upon the verdict, and the plaintiff allowed 60 days within which to prepare and present a bill of exceptions for allowance.
KINNEY V. UNITED STATES.
(Circuit Court, D. Connecticut. February 6, 1893.)
No. 385. 1. UNITED STATES MARSHALS-FEES-EVIDENCE-MEMORANDA.
Entries and memoranda made by a deceased United States marshal are admissible in evidence in favor of his administratrix in an action by her against the United States to recover for services and disbursements of the
intestate in his lifetime. 2. SAME-EVIDENCE-ALLOWANCE BY COURT.
The approval of a United States marshal's account by a circuit court of the United States under Act Feb. 22, 1875, (18 St. p. 333,) is prima facie evidence of its correctness, and, in the absence of clear and unequivocal
proof of mistake on the part of the court, is conclusive. 8. SAME-ATTENDANCE AT “HEARINGS.
A hearing on the question of admission to bail, or on motion to adjourn, or on arraignment or commitment, constitutes a “hearing and deciding,' for the attendance upon which a United States marshal is entitled to a per diem fee. SAME.
A United States marshal is not entitled to per diem compensation for attendance before the court where no certificate is filed showing that the court was open, and business transacted. Marvin v. U. S., 44 Fed. Rep.
405, followed. 8. SAME-ARRESTS-EXPENSES.
A marshal is not entitled to expenses incurred in endeavoring to make an arrest, when he had no warrant, and could not have arrested the accused
if found. 6. SAME.
A marshal is entitled to expenses incurred in making an arrest, although such arrest was not made by the deputy sent for that purpose, but was made in consequence of information acquired in traveling about for that purpose, under the direction of the district attorney; and the marshal is
not restricted to the statutory allowance of two dollars per day. 7. SAME.
He is also entitled to the expenses of the deputy in thus traveling about under direction of the district attorney, it appearing that the arrest followed directly from information thus obtained.
Such officer is entitled to mileage in serving writs where it appears that the railroad route traveled was the nearest practicable. Fletcher v. U. S.,
45 Fed. Rep. 213, followed. 9. SAME-RAILROAD TRAVEL.
Also to mileage for the distance proved to have been charged for by the railroad company, though the actual distance was a little less, and for the
distance from the railway terminus to the destination. 10. SAME.
Also charges for actual travel, where the services and returns were in the same place, and there is proof that such charges had always theretofore
been allowed and paid. 11. SAME-EXPENSES IN LIEU OF MILEAGE.
Also for actual traveling expenses charged in lieu of mileage. 12. SAME.
Also for travel for procuring witnesses from outside the district by direo
tion of the district attorney. 18. SAME-TRAVEL TO ATTEND COURT.
The marshal is entitled to charges for travel to attend court on days
which were consecutive. Harmon v. U. S., 43 Fed. Rep. 560, followed. 14. SAME-CONVEYING PRISONER.
Also to expenses incurred in taking a prisoner from the jail in one cty to the courthouse in another, such a case not falling within Rev. St $ 1030, providing that for bringing any prisoner into court without writ,
and on the order of the court or district attorney, no fees shall be charged. 15. SAME.
Also for mileage for taking a prisoner to and from the commissioner and jail, by virtue of warrant and mittimus under the Connecticut practice, as in such case Rev. St. 8 1030, has no application. Harmon v. U. S., 43
Fed. Rep. 560, followed. 16. SAME-RELEASES ON BAIL BOND.
Also for releases on bail before the commissioner, where such release In
volves the taking of a bail bond. 17. SAME-CARRIAGE HIRE.
Also for the hire of carriages to transport prisoners, and serve process, where the services are of great value, and the charges include only
amounts allowed for travel or actual expenses. 18. SAME-STATIONERY.
Also for stationery furnished by the marshal for the use of the court,
proper vouchers for the cost of the same being duly produced. 19. SAME-PAYMENTS TO COURT OFFICERS.
Also for payments made by the marshal to court messengers, criers, and bailiffs in pursuance of statutory requirement.
At Law. Action by Sarah T. Kinney, as administratrix of John C. Kinney, under Act March 3, 1887, (24 St. p. 505,) to recover for services and disbursements of her intestate as a Ünited States marshal. Judgment for plaintiff.
L. E. Stanton, for plaintiff.
TOWNSEND, District Judge. This is an action brought under the provisions of the act of March 3, 1887, (24 St. U. S. p. 505,) wherein the plaintiff, as administratrix of the late John C. Kinney, seeks to recover certain sums for services and disbursements of said John C. Kinney as United States marshal, in those of his accounts settled after June 15, 1885, and including matters which accrued up to August 4, 1886, when he retired from office. The items of