same is hereby, canceled and annulled, reserving to said libelant their right against the bond of fifty-five thousand dollars, given in the proceeding for the limitation of liability numbered 15253 of the docket of this court.

"Upon the disposition of the rule, answer, and exceptions thereto, and consolidation of the said cause No. 15234 and 15253 of the docket of this court, and cancellation of release bond executed by the Bisso Towboat Company, as above set out, the Société Napthés Transports, by its proctor, moved for a rehearing, with respect to the foregoing order, in so far as the cancellation of said bond is directed; whereupon the court ordered rehearing refused."

From that order this appeal has been taken, assigning as error in various forms solely the question of the illegality of that part of the decree which orders the $75,000 bond filed to secure the release of the towboat W. A. Bisso to be canceled.

Section 4283, Revised Statutes (Comp. St. 1916, § 8021), reads as follows:

"The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, lost, damage, or forfeiture, done, occasioned, or incurred, without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."

Sections 4284, 4285, and 4286 (Comp. St. 1916, §§ 8022-8024) relate to procedure under section 4283.

[2] It seems to be settled that proceedings to limit the liability of shipowners under said section supersede all other actions and suits for the same loss or damage in the state and federal courts. See Providence & New York Steamship Co. v. Hill Manufacturing Co., 109 U. S. 578, 3 Sup. Ct. 379, 27 L. Ed. 1038; also Monongahela River Consolidated Coal & Coke Co. v. Hurst, 200 F. 711, 119 C. C. A. 127. In this lastcited case it is held that the right of a vessel owner to a limitation of liability under the statute as against a decree for collision damages is not waived by the giving of a supersedeas bond or appeal from such decree, but the liability of both principal and surety on such bond is impliedly subject to such limitation, citing The Scotland, 105 U. S. 31, 26 L. Ed. 1001, and The Great Western, 118 U. S. 520, 6 Sup. Ct. 1172, 30 L. Ed. 156, et seq.; and in that case it was further held that the shipowner had the right to first contest liability for the collision in any court, state or federal, in which suit therefor might be brought, including the appellate court of last resort, without raising the question of limitation, and without thereby waiving the right to take the benefit of the statute, and numerous cases are cited in support thereof.

It would seem that section 4283, R. S., supra, and sections 4284, 4285, and 4286, relating to procedure thereunder, being in full force at the time the release bond of $75,000 was made and filed, the said sections were practically written into said bond, and to be considered as controlling in construing the force and effect of the same.

It follows that none of the assignments of error are well taken, and the decree appealed from should be affirmed; and it is so ordered.

241 F.-30

KINSLEY v. GRUPPE.

(Circuit Court of Appeals, Third Circuit. April 26, 1917.)

No. 2209.

1. SALES 364(2)—ACTIONS FOR PRICE INSTRUCTIONS-TITLE OF SELLER— EVIDENCE.

In an action for the purchase price of a picture, which the former owner had delivered to plaintiff, who testified that he had bought it, it was not error to charge that possession of personal property was evidence of title, and that the jury was justified in reaching the conclusion that a man owns that which he possesses, especially where, after the trial, the court safeguarded defendant by having the picture secured to him, together with a release from the former owner, on payment of the judgment.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1066.] 2. SALES 364(8)—VALIDITY-SALE AFTER INSPECTION-GENUINENESS PICTURE.

OF

Where defendant agreed to purchase a picture, which plaintiff had permitted him to examine, and there was no fraud or deception on the part of plaintiff, or guaranty that the picture was genuine, the court properly refused to submit to the jury the question of its genuineness, limiting their consideration to the question whether that was the picture which defendant had agreed to buy.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 1073.]

In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.

Action by Charles P. Gruppe against Joseph T. Kinsley. Judgment for plaintiff, and motion for new trial was denied (227 Fed. 933), and defendant brings error. Affirmed.

Harry D. Wescott, of Philadelphia, Pa., and John W. Wescott, of Camden, N. J., for plaintiff in error.

Ralph N. Kellam, of Philadelphia, Pa., for defendant in error. Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON, Circuit Judge. In the court below, Charles Gruppe, a citizen of New York, brought suit against Joseph T. Kinsley, a citizen of Pennsylvania, to recover $5,000, a sum alleged to have been agreed upon as the purchase price of a picture sold by the former to the latter. On trial the jury found for the plaintiff, and on entry of judgment thereon defendant sued out this writ.

Without entering upon a discussion of each of the 15 assignments of error, we may say they, in substance, center around two questions: First, was there sufficient proof of the plaintiff's ownership of the picture to justify the court in submitting the case to the jury? and, second, did the court err in withdrawing from the jury the question whether the painting was the work of Anton Mauve, the well-known Dutch painter?

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

[1] In respect to title, it is alleged the court erred in directing the jury:

"The plaintiff in the case has possession of this picture. The possession of personal property, without anything, is evidence of title. You can reach the conclusion from that, and you are justified in reaching the conclusion from that, that a man does own that which he possesses."

As applied to the situation, we find no error in these instructions. The picture had been owned by one Fliermanns, who lived in Holland, and at Kinsley's suggestion, and after Kinsley had seen a photograph of it, Gruppe had it sent from Holland to himself in New York, in order that Kinsley might inspect it. After such inspection, on its arrival in New York, it was sent to Kinsley in Philadelphia, who in reply wrote Gruppe:

"I beg to acknowledge receipt of your favor of the 1st inst., and beg to say, in reply, the painting by A. Mauve arrived in splendid condition. It has created somewhat of a sensation. I have enjoyed very much showing it to a number of gentlemen and art critics, who were very much impressed. I will make final settlement in a few days as agreed to."

There was no evidence of any bad faith in the matter, as both Gruppe and Kinsley were men of large and long familiarity with paintings. Gruppe, when on the stand, testified he had bought the picture, and that the price which Kinsley agreed to pay him for it was $5,000. During the trial, a number of artists and dealers testified the picture was a genuine Mauve, while others testified to their belief that it was a copy. In the light of the issues and the proofs, we are of opinion no error was committed by the court. As to the question of title, no such question was raised by the defendant in the pleadings, and the plaintiff expressly testified he had bought the picture. We also note that after the trial the court took proper steps to safeguard the defendant by having the picture itself secured to him, together with a release from Fliermanns, the former owner, on payment of the judgment.

[2] As to the question of the identity of the painter, we are of opinion the court committed no error. The sale was of a canvas which the purchaser had examined. There was no fraud or deception on the part of Gruppe, nor any guaranty on his part that it was the work of Mauve. Under the circumstances, we think the court was right in refusing to submit to the jury the question whether Mauve was the painter of the picture, and in confining it to the issue before. it, namely, whether these parties had made a contract for the purchase and sale of this painting, whether they had agreed on a price, whether the plaintiff had performed his part of the contract, and whether the defendant had refused to perform his.

Finding no error in the trial of the cause, the judgment below is affirmed.

EDISON ELECTRIC ILLUMINATING CO. OF BOSTON v. TIBBETTS.

(Circuit Court of Appeals, First Circuit. April 23, 1917.)

No. 1251.

BANKRUPTCY 164-RIGHTS OF TRUSTEE-DEPOSIT PAYMENT AFTER AD

JUDICATION.

The trustee in bankruptcy can recover the amount of the check given by the bankrupt in good faith before adjudication, but deposited in a bank other than the one on which it was drawn, and not presented to the drawee bank until after adjudication, though none of the parties knew of the adjudication when the amount was paid to the payee.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 267.] Appeal from the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge.

Petition by G. Wallace Tibbetts, as trustee in bankruptcy, against the Edison Electric Illuminating Company, of Boston, to recover the amount of a check given by the bankrupt to respondent and cashed by it after the adjudication. Decree for petitioner, and respondent appeals. Affirmed.

The opinion of Morton, District Judge, in the court below, is as follows:

The check for $502.68 was delivered to the Edison Electric Illuminating Company by the bankrupt in good faith, and in order to prevent the light from being shut off his hotel, two days before his voluntary petition in bankruptcy. It was not presented by the Edison Company directly to the drawee bank, but was deposited in another banking institution for collection, and was presented through the clearing house. It was paid by the bank after the petition and adjudication, but before any of the parties, except the alleged bankrupt, knew of those facts. The institutions through which the collection was made acted, in so doing, as agents of the Edison Company.

In legal effect the case is the same as if the Edison Company itself had retained the check and had not presented it for payment until after the drawer had been adjudicated bankrupt, and had then done so in good faith and without knowledge, either on its part or on that of the drawee bank, of such bankruptcy. Upon such facts, is the payee entitled as against the trustee in bankruptcy to retain the sum received on the check? The delivery of the check did not operate as an assignment or segregation of the funds on deposit, nor impress those funds with any trust in favor of the payee. The check was a draft which it was the duty of the drawee to pay upon presentation as long as it had funds available therefor. Fourth Street Bank v. Yardley, 165 U. S. 634, 643, 17 Sup. Ct. 439, 41 L. Ed. 855; Holbrook v. Payne, 151 Mass. 383, 385, 24 N. E. 210, 21 Am. St. Rep. 456; Negotiable Instruments Act, Rev. Laws Mass. c. 73, § 206. The delivery of the check was not a completed transfer of the debtor's property. By the general law it did not extinguish his liability to the Edison Company until it was paid. Downey v. Hicks, 14 How. 240, 14 L. Ed. 404; Segrist v. Crabtree, 131 U. S. 287, 9 Sup. Ct. 687, 33 L. Ed. 125. Cf. Houghton v. Boston, 159 Mass. 138, 34 N. E. 93. The Edison Company acquired no rights in the money received on the check until the actual payment thereof. The effect of the transaction is to be determined as of that time.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Upon the adjudication—which in voluntary cases like this is to be considered as immediately following upon the filing of the petition (In re Hurley, 185 Fed. 851 [D. C. Mass.])—the bankrupt's deposit came into the complete custody of the bankruptcy court. Thereafter it was no longer his property. 2 Remington on Bankruptcy, § 1274. The legal title was still in him, but he held it only for the trustee when one should be qualified; and he was unable to effect any valid transfer of it, except possibly for full value, in the ordinary course of business. Certainly the estate could not be diminished by any act of his after that time. Everett v. Judson, 228 U. S. 474, 33 Sup. Ct. 568, 57 L. Ed. 927, 46 L. R. A. (N. S.) 154; Pratt v. Bothe, 130 Fed. 670, 65 C. C. A. 48 (C. C. A. 6th Cir.); In re Waite-Robbins Motor Co., 192 Fed. 47 (D. C. Mass.); 1 Remington on Bankruptcy (2d Ed.) §§ 1120, 1121. If, instead of having delivered the check before the petition and adjudication, he had not done so until afterward, and the payee, in ignorance of the facts, had collected it, it is clear that the payee could not, as against the trustee in bankruptcy, retain the money so received. State Bank v. Cox, 143 Fed. 91, 74 C. O. A. 285, 16 Am. Bankr. R. 32 (C. C. A. 7th Cir.). The prior delivery of the check did not enlarge the payee's rights. The contrary view would open such a broad avenue of fraud that I should hesitate to take it unless compelled to do so. The money which the Edison Company received belonged to the trustee in bankruptcy; no consideration was at that time given for it; and it must be returned to him. In Laclede Bank v. Schuler, 120 U. S. 511, 7 Sup. Ct. 644, 30 L. Ed. 704, a somewhat similar controversy between the holder of a check and a common-law assignee was resolved in favor of the assignee. The rights of a trustee in bankruptcy in the debtor's property, as of the date of adjudication, are at least as great as those of an assignee in possession.

It may be that, as between the trustee and the bank, the latter would be protected by reason of the agreement under which deposits are customarily accepted.. See In re Zotti, 186 Fed. 84, 108 C. C. A. 196, Ann. Cas. 1914A, 240; Reed v. Mattapan Del. & Tr. Co., 198 Mass. 306, 84 N. E. 469. No such question arises between the trustee and the Edison Company.

The learned referee's finding that the payment was not a recoverable preference is affirmed; but his further conclusion that the trustee was not entitled to recover seems to me to have been erroneous. The order of the referee dismissing the petition is vacated. The petitioner may present a draft decree in accordance with this opinion.

M. L. Fahey and Burdett, Wardwell & Ives, all of Boston, Mass., for appellant.

C. C. Barton, Jr., of Boston, Mass. (Barton & Harding, of Boston, Mass., on the brief), for appellee.

Before DODGE and BINGHAM, Circuit Judges, and ALDRICH, District Judge.

PER CURIAM. The question presented on this appeal has been fully and ably considered in the opinion of the court below, and we see no reason for departing from the conclusion there reached.

The decree of the District Court is affirmed, with interest, and the appellee recovers the costs of appeal.