ever, that he did not hear the first signal of the North Star, and he is supported by the testimony of those on board his vessel.

When the second signals were exchanged the situation had materially. changed. The vessels had reached a place where the attempt of the North Star to pass could not be accomplished without a chance that it would interfere with the preparatory movements of the Siemens to enter the cut, and thereby involve some degree of risk to her tow. He was aware that the North Star could not pass the Siemens before reaching the crib lighthouse without exceeding a lawful rate of speed, unless the speed of the Siemens should be reduced to a degree which might possibly be hazardous to the tow.

He ought not to be criticised for refusing to consent to a violation of the law, nor for exercising extreme caution. When the third signal of the North Star was given the situation of the vessels was such that the attempt to pass could only be accomplished at serious risk to the tow, and every consideration of prudence forbade the master of the Siemens from consenting and slackening the speed of his vessel.

We have examined the proofs with care to ascertain whether it can be safely found that the Siemens was guilty of any attempt to thwart the movements of the North Star at or after the time when the former commenced her preparatory movements to enter the cut; and do not think they justify such a conclusion. She was required to begin to change her course several hundred feet above the entrance to the cut, and alter it to starboard four or five points to enter the cut and get straightened down the channel and enable her tow to do so, and in view of her size and the size of her tow, and the length of the hawser to the tow, this movement could hardly be accomplished except by swinging into the cut at or near mid-channel.

We conclude that the court below properly found that the Siemens was free from fault.

Of the award of over $30,000 for the libelant's damages caused by the collision, $12,036 consists of demurrage, the loss alleged to have been occasioned to the libelant by the detention of the Siemans and the Holley. It is insisted for the appellant that the commissioner, to whom it was referred to ascertain and report the damages consequent upon the collision, properly refused to allow this item, and that the court below erred in overruling that part of his report.

The collision took place November 28th, and resulted in the stranding. of the two vessels, the necessity for temporary repairs to complete their voyage to Conneaut, their port of destination on Lake Erie, and repairs at Loraine, the nearest port at which the further necessary repairs could be made. Had the voyage not been interrupted by the collision, the vessels would have reached their port of destination, and could have been unloaded and ready to start on another voyage by the afternoon of December 2d. As it was, they were prevented from making another voyage during the season of navigation upon the lakes. The season of navigation was, by the understanding of vessel owners and underwriters, to close December 10th, but, as the ice did not block St. Mary's Canal at that date, some vessels passed through as late as December 17th.

The commissioner found that, if it had not been for the interruption: of their voyage, the vessels could, at their owner's option, have been despatched to Duluth, taken on a grain cargo there, and returned to a Lake Erie port within the season of navigation; and, if they had actually done this, they would have earned freight beyond expenses amounting to the item in controversy. But he did not find that they would have been actually sent out upon another voyage; and he based his disallowance of the item upon the improbability, in view of the evidence, that either of them would have been sent by their owner upon another voyage that season. He applied the rule stated in The Conqueror, 166 U. S. 125, 17 Sup. Ct. 516, 41 L. Ed. 937:

"That demurrage will only be allowed when profits have actually been, or may be reasonably supposed to have been lost, and the amount of such profits is proven with reasonable certainty."

When a vessel is employed at the time of the collision, or when it appears that she would have been beneficially employed during the period of her detention, it is entirely clear that actual loss has attended. the interruption of her engagements. The Margaret J. Sanford (C. C.) 37 Fed. 148. Her owner is entitled to full indemnity. In other words, he is entitled to compensation measured by his actual loss, including, not only his direct loss, but any consequential loss he may have sustained by deprivation of profit. But his consequential loss cannot exceed that which he actually sustained. In ascertaining whether earnings have been lost by the owner, the inquiry is not whether they could possibly have been made by the use of the vessel during the period for which he has been deprived of her use, but is whether they would have been made. As it cannot be proved that they would have been certainly made, except when the vessel has a pending engagement. for her profitable use during the period of detention, it suffices if the fact is proved circumstantially and with a reasonable degree of certainty. The inquiry is determined by the same rules of law which obtain when the owner of any other kind of property seeks compensation for the profits lost by the wrongful interruption of its use. The Baltimore, 8 Wall. 377, 385, 19 L. Ed. 463. It is not necessary for him to show by direct evidence that he would have employed his vessel or his property during the period in such a way that earnings would have accrued to him. In many cases this would necessitate proving his intention at the time, and this might be impossible. It suffices if he shows a state of facts from which a court or jury can find that there was an opportunity for him to do so, and that he would probably have availed himself of it. But if it appears affirmatively, or if the reasonable inference from the facts established is that there was no opportunity or that he would have rejected the opportunity, if offered, it is impossible for a court or jury to find legitimately that he has sustained actual loss.

In the present case, the facts were these: The Siemens and the Holley were vessels of a fleet owned by the libelant, engaged in voyages from ports on Lake Erie to ports on Lake Superior. The fleet consisted of 24 vessels, 12 being steamers, and 12 being barges. Customarily each steamer was despatched with a barge in tow, but no regular towage,

151 FEDERAL REPORTER.

arrangement existed, and the barges were transferred at either end of a voyage to different steamers, or returned by a particular steamer, as might best facilitate despatch in transportation. All of the vessels were insured under marine policies, warranting that they should not be navigated after December 10th at noon, except to continue a voyage already begun. The average time occupied by a voyage to Duluth and back by the Siemens and her consort was 10 days; the vessels going without cargo on the up trip. No charters were offered the libelant for either the Siemens or the Holley, but cargoes of wheat for transportation by two of its vessels from Duluth to Buffalo were offered to it as late as November 27th. On that day the libelant accepted two charters for wheat at Duluth. A witness was produced by the libelant, one of two agents in the libelant's office at Cleveland, who testified that two cargoes were offered libelant subsequently to that date, but at what date does not appear, and were not accepted by libelant. He also testified that the reason why they were not accepted was that the only one of the libelant's steamers which would have been available for the voyage was the Siemens, that she was faster than other steamers of the libelant, and if she had not been disabled the libelant would have sent her to Duluth. At the time these charters were offered, three of libelant's steamers and five of its barges were at Lake Erie ports unemployed, and in suitable condition and readiness for making a voyage to Duluth and transporting wheat cargoes to Buffalo. None of these vessels were sent out for another voyage, but all were laid up for the winter. Of the eight other steamers of libelant, which arrived at Lake Erie ports in November, with their barges, none was sent out with a barge after November 25th, two were sent out on that day without a barge, and the last sent out at all were sent without a barge-one, the Bessemer, November 29th, and the other, the Morse, November 30th. Except two barges sent out November 25th, all the other barges were sent on their last up-lake trips before November 22d. Upon these facts the commissioner in his report very justly observed that (when the two charters were refused) the season of navigation on the Great Lakes was near the close, the voyages of the fleet were suspended, the vessels were about to go into winter quarters, and one by one libelant's vessels had been laid up for the winter as they arrived at Lake Erie ports. The testimony of the libelant's witness leaves the date at which the two charters were offered, and refused conveniently vague and uncertain. They may have been offered on November 21st, after but on the same day of the acceptance of the two of that date. They may have been offered as late as December 2d. He knew of the collision on November 28th, the day on which it occurred, and he knew that if it had not occurred the Siemens and the Holley would not have been able to undertake another voyage before December 2d. It seems extremely improbable that he would have been willing to despatch these vessels within eight days of the expected close of navigation on a 10 days' voyage. He did not state how much faster the Siemens was than were the other steamers which could have been despatched for the voyage. He did not state that the refusal to accept the last two charters offered was placed upon the ground that the Siemens was disabled; nor did he give

a single fact to corroborate his statement that the charters would have been accepted if she had not been disabled. The case for the libelant rests upon the naked statement of this single witness respecting his state of mind. We think the commissioner was justified in rejecting this statement, and in reaching the conclusion that the two charters were not accepted because the libelant was unwilling to send out any of its vessels at so late a day as December 2d, and was therefore unwilling to contract. The functions of a commissioner, to whom it has been referred to take the evidence and report his opinion to the court respecting damages, are analogous to those of masters in chancery (Admiralty Rule 44), and his findings upon questions of fact depending upon conflicting testimony, or upon the credibility of witnesses, should not be disturbed by the court of revision, unless they are clearly erroneous. Bourgogne (C. C. A.) 144 Fed. 781; Davis v. Schwartz, 155 U. S. 631, 636, 15 Sup. Ct. 237, 39 L. Ed. 289; Tilghman v. Proctor, 125 U. S. 136, 150, 8 Sup. Ct. 894, 31 L. Ed. 664.

La

It follows that the commissioner's report, as to the item disallowed, was erroneously overruled by the District Judge.

The decree is modified, with costs to the appellant, and with instructions to the court below to decree conformably with this opinion.

MELDRUM v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. February 4, 1907.)

No. 1,360.

1. FORGERY-INSTRUMENT INTENDED TO DEFRAUD UNITED STATES-INDICTMENT. An indictment which charges the defendant with having feloniously and falsely made and forged and uttered a certain affidavit purporting to be the affidavit of a person named, a pretended settler on unsurveyed public lands, and which sets out the affidavit, in which it is stated that affiant is such settler, has made improvements, etc., and then charges that it was so made by defendant with intent to file the same in the office of a Surveyor General of the United States to be used as a basis for letting a contract for surveying said lands described therein, and with the further intent that it should be transmitted to the General Land Office for the purpose of obtaining the approval of and payment for said survey, charges an offense of forging a writing for the purpose of obtaining, or enabling others to obtain, money from the United States.

2. SAME.

An indictment for forging a writing with intent to defraud the United States is sufficient to charge the offense, so far as concerns the nature of the instrument, if it is made to appear that it is one by which the government might have been defrauded, and it need not aver the existence of extraneous facts which would or might be necessary to that result.

3. AFFIDAVITS-FORMAL REQUISITES-OMISSION OF VENUE AND NOTARIAL SEAL. An affidavit is not fatally defective because of the omission of the venue or of a notarial seal to the jurat, in the absence of a statute requiring the jurat to be so attested.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Affidavits, §§ 52, 55.]

4. CRIMINAL LAW-DEATH OF JUDGE AFTER VERDICT-POWERS OF SUCCESSOR. On the death of a federal judge before whom a criminal cause was tried before a motion for new trial has been passed on, his successor has power, 151 F.-12

151 FEDERAL REPORTER.

under Rev. St. § 953, as amended in 1900 (Act June 5, 1900, 31 Stat. 270, c. 717, § 1 [U. S. Comp. St. 1901, p. 696]), to pass upon and overrule such motion where the evidence has been taken and preserved in stenographic notes, and, having such power, he has the further power to proceed in the case and to render judgment on the verdict.

In Error to the District Court of the United States for the District of Oregon.

For opinion below, see 146 Fed. 390.

The plaintiff in error was tried and convicted in the court below upon an indictment which contained 21 counts, alternately charging him with forging and uttering certain false affidavits. The first count is as follows: "That Henry Meldrum on the 6th day of January, 1902, at the city of Portland, within the state and district of Oregon, for the purpose of defrauding the United States, feloniously did falsely make and forge a certain affidavit, purporting to be the affidavit of one Wm. E. Pardee, a pretended settler upon unsurveyed lands of the United States, which affidavit was for the purpose of procuring said lands to be surveyed by the United States, the tenor of which said false and forged affidavit is as follows, to wit:

"Application for Survey.

""The U. S. Surveyor General, Portland, Oregon-Sir: I, the undersigned settler, residing up unsurveyed land, believed to be in Tp. 27 S., R. 26 E., W. M., Or., a citizen of the United States, and entitled to enter land under the laws thereof, do hereby apply for the survey of the above-named township, or so much thereof as can be surveyed under the present laws and regulations established and prescribed by the Hon. Commissioner of the General Land Office. And I do solemnly swear that I am an actual and bona fide settler upon said unsurveyed land of the United States; that I make this application in good faith, and intend to perfect the title under the homestead laws to my claim, situated in approximate section 17 of the above-named unsurveyed township; that I know the greater portion of said township is not known to be mineral, but is agricultural (timber and grazing land), and as far as I know is not reserved by the government. And I further swear that my improvements con

sist of house, fences, and other improvements, and that I estimate their money value at $375.00 and that I settled upon said land in good faith January 30, 1896.

66

[Signature of applicant] Wm. E. Pardee,

"Post Office: Narrows, County of Harney, State of Oregon. "Subscribed and sworn to before me this 6th day of January, 1902.

"J. W. Hamakar, Notary Public for State of Oregon.' -with intent then and there to file the same in the office of the Surveyor General of the United States at Portland, Oregon, to be used as a basis for letting a contract for surveying said lands described therein by the United States, and with the further intent that said false and forged affidavit should be transmitted to the Commissioner of the General Land Office of the United States at Washington, District of Columbia, for the purpose of obtaining the approval of and payment for said survey; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America."

The second count charged the uttering of said false and forged affidavit. The other counts were similar to the first two. The exceptions taken at the trial, if any there were. were not preserved, and no bill of exceptions was presented or allowed. There was no demurrer to the indictment and no objection made thereto in any form, nor was there a motion in arrest of judgment. The case was tried before the Honorable C. B. Bellinger, the former judge of the court below, and on November 17, 1904, the verdict of the jury was returned. On December 13, 1904, the plaintiff in error filed a motion to set aside the verdict and for a new trial, on the ground that the verdict was not sustained by the evidence; that it was contrary to law; that error of law was committed by the judge at the trial; and that error of law was committed