perhaps, a doubtful question whether the change of site was a variation of the agreement. The bridge company's undertaking was to do certain work at "the United States navy yard, Mare Island, Cal."; no particular site being pointed out in the contract or in the specifications, and both sites being within the descriptive words just quoted. But, assuming that the change of site varied the agreement so that the government thereby lost the protection of the surety's obligation, it does not follow that the protection of the separate and additional obligation was also lost, so far as the Phoenix Iron Company is concerned. This additional obligation has not been varied in any respect with the consent or acquiescence of the iron company. This company has fulfilled its subcontract to furnish material for the prosecution of the work, and, in my opinion, the surety has not even a technical defense to the claim. The point has been squarely decided by the Circuit Court of Appeals for the Eighth Circuit, in United States, for Use, etc., v. National Surety Co., 92 Fed. 549, 34 C. C. A. 526, and I refer to the opinion of the court, delivered by Judge Thayer, as a thoroughly satisfactory discussion of the question now under consideration. To the refusal of judgment notwithstanding the verdict and to the refusal to dismiss, an exception is sealed to the surety company. In re FRITZ. (District Court, E. D. New York. March 23, 1907.) BANKRUPTCY--EXEMPTION OF BANKRUPT FROM ABREST-COMMITMENT FOR CON TEMPT. An order of a court of bankruptcy restraining a sheriff from arresting a bankrupt on civil process, following the language of Bankr. Act July 1, 1898, c. 541, § 9a, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3425], does not prevent the commitment of the bankrupt by a state court for a contempt. where such commitment is intended as a punishment, and not for the collection of a debt. In Bankruptcy. On motion to modify restraining order. CHATFIELD, District Judge. It appears from the motion papers that Samuel Fritz, the bankrupt, was the defendant in a suit in the Supreme Court of Kings county, where he was sued under the name of Simon Fritz, in which a judgment was entered apparently on the 25th day of June, 1903, for the sum of $271. There is some dispute as to whether the cause of action on which this judgment was obtained arose from a debt which was dischargeable in bankruptcy. Subsequently a supplementary examination was held, but the defendant did not appear for examination. Thereupon an order to show cause was obtained, why the judgment debtor (called "Simon" Fritz) should not be punished for such misconduct, and upon the entire record an order was made by Mr. Justice Jaycox, in the Supreme Court of the state of New York, on November 19, 1906, adjudging said Simon Fritz guilty of contempt of court in having willfully disobeyed an order of October 25, 1906, in the proceedings supplementary to execution. The said order of Mr. Justice Jaycox also further adjudged that the misconduct of said Simon Fritz impaired, impeded, and prejudiced the rights and remedies of the judgment creditor to his actual loss or injury in the sum of $271, with interest, amounting in all to the sum of $325.20, and further ordered that the said Simon Fritz be committed by the sheriff of the county of Kings, to be detained in close custody until he should pay the said sum or be discharged according to law, and that a warrant issue for the execution of that order. The judgment debtor filed a petition in bankruptcy, under the name of "Samuel" Fritz, on or about the 1st day of December, 1906, and obtained an order, dated December 3, 1906, restraining the sheriff of the county of Kings and others from interfering with the property of the bankrupt, and enjoining and restraining the said sheriff and others "from arresting the said bankrupt on civil process save in the cases specified in subdivisions 1 and 2 of section 9a of the bankruptcy law of 1898." Act July 1, c. 541, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3425]. The judgment creditor on March 6, 1907, obtained an order directing the bankrupt or his attorney to show cause why the restraining order of December 3, 1906, should not be modified, by permitting the sheriff of the county of Kings to execute the order committing the bankrupt and judgment debtor for contempt which was made by Mr. Justice Jaycox on November 19, 1906. The restraining order of December 3, 1906, followed the language of the bankruptcy statute, and left open the question whether it was to be applied to the enforcement of the order directing the punishment of the bankrupt for contempt. The sheriff seems to have considered himself stayed, and the Supreme Court has made no further order for the punishment of the judgment debtor. This court could stay the collection of a judgment for a dischargeable debt by means of a contempt proceeding, ostensibly intended only to aid such collection. No authorities are cited on behalf of either party which are conclusive upon this question. All the authorities cited fall upon one side of the line or the other, accordingly as the matter of punishment is held to be a proceeding for the collection of a debt, or to punish a person for contempt of the court's authority as such. It would appear from the order of Mr. Justice Jaycox, dated November 19, 1906, that because of the failure of the judgment debtor to appear for examination, as required, he was adjudged in contempt, and directed to pay the amount of the judgment, with interest. If the original debt was one dischargeable in bankruptcy, the contempt. proceedings would therefore seem to have been considered by the court merely in aid of the collection of the judgment, and not solely as punishment for disregard of the court's authority. The bankrupt and judgment debtor was not directed to be imprisoned for any particular time, nor fined any ordinary sum, but he was directed to be committed until he should pay to the judgment creditor the face of the judgment, with interest, and no costs of the motion were added thereto. The restraining order of December 3, 1906, stayed the collection of all dischargeable debts, and by section 17, subd. 2, of the bankruptcy act, liabilities for willful and malicious injuries to the person or property of another are not dischargeable. So far as can be learned from the papers submitted, the action on which the original judgment was recovered against Fritz was brought in the Municipal Court of the city of New York, upon oral pleadings, for injuries to personal property. The answer was a general denial, and the plaintiff obtained a judgment. If this action was for "willful and malicious injury to personal property," the restraining order of December 3, 1906, did not affect this judgment. Further, if the order of Mr. Justice Jaycox, directing the defendant's punishment for contempt, was intended as a punishment, and not to assist merely in the collection of the debt, the commitment of the debtor was not stayed by the order of December 3, 1906. The Supreme Court can decide as to the scope of its own order, and determine the duty of the sheriff. Until the questions above suggested are cleared up, and until some conflict arises from the effects of the restraining order, there is no necessity for any modification of its terms. The motion is therefore denied. THE SENTINEL. (District Court, E. D. New York. March 23, 1907.) 1. SEAMEN-WAGES-EFFECT OF DISCHARGE FOR Cause. A seaman is entitled to recover wages for the time served, although discharged because of fault on his part. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Seamen, § 83.] 2. SAME. Conflicting evidence considered, and held to sustain the claim of a seaman for wages, but not to show that they were withheld without sufficient cause, so as to subject the owner to the penalty provided by Rev. St. $ 4529 [U. S. Comp. St. 1901, p. 3077]. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Seamen, § 150.] In Admiralty. Suit by seamen for wages. James J. Macklin, for claimant. F. A. Acer, for libelants. CHATFIELD, District Judge. The libelant Peterson claims wages to the amount of $93.33 for services as engineer upon the yacht Sentinel during the month of May and up to the 2d of June, 1905, and the further sum of $475, wages at the rate of $1 a day, under the provisions of section 4529, Rev. St. [U. S. Comp. St. 1901, p. 3077], computing the time from the date when the alleged wages of $93.33 became due. The libelant Evje claims wages in the amount of $100, for the month of June, 1905. The testimony in the case shows that the libelant Peterson was discharged upon the 2d day of June, 1905, at the request of the officers of the Engineer Corps of the United States Army, who were operating the yacht Sentinel under a charter with the owner at that time. The claimant produces a receipt for the sum of $75 (alleged by the libelant Peterson to have been altered from a receipt for $5), which it is stated by the claimant covered the wages of the libelant Peterson for the month of May. On behalf of Peterson a check for the sum of $90 is produced, which he received at the end of the month of May, and upon which payment was stopped. The claimant offers proof to the effect that this check was made out on information furnished by one Edwards, then mate of the vessel, but that payment on this check was stopped, inasmuch as information was obtained that the $75 referred to in the receipt had already been paid. It is impossible to determine from the testimony what the exact situation was. Edwards, the mate of the vessel, who was a witness throughout the whole transaction, and by whom the $75 was paid to Peterson, if paid at all, is in Australia. Upon the testimony it is apparent that Peterson rendered services for the time alleged. Without the testimony of the man Edwards, it seems to the court that Peterson is entitled to his wages for the month of May, and for two days in June. The check on which payment was stopped was testified to be in Edwards' handwriting, and was given upon information as to the services of Peterson furnished by Edwards. This makes it unreasonable to suppose that within a few days afterwards payment was stopped upon the check upon information also furnished by Edwards, to the effect that he had already paid $75 of the wages represented by the check, and that at an interview between Edwards, Peterson, and William Garner, agent for the owner, Peterson should sign a receipt admitting that fact, after attempting to collect the amount of the check which had been stopped. William Garner is afflicted with cataracts, and is apparently unable to see, except close at hand, and when objects are held at an angle to his line of vision. Peterson showed on the trial that script writing in English was not read by him with much facility, and it would appear that, if any deception was practiced, it was connected with the action of the missing Edwards. The story of Peterson as given on the stand is sufficient to entitle him to recover wages for the month of May at the rate of $100 per month, less $10 cash advanced, and $5 paid in the month of June, making the net amount of $85, together with $3.33, for one day's service in June. In the case of Evje, who was hired at the rate of $100 per month, and discharged upon the 14th of June, a serious issue of fact arises over the circumstances of his discharge, and the condition in which he left the boilers of the boat. It may be that the owner of the boat suffered serious damage resulting from the acts of Evje, but no counterclaim to offset the claim for wages has been filed. On the authority of Moore v. Neafie (D. C.) 3 Fed. 650, The Pacific (D. C.) 18 Fed. 703, and The Belle of the Coast (D. C.) 56 Fed. 251, it would appear that Evje is entitled to his wages for the 14 days of June, even if discharged because of fault on his part. The testimony of Evje and his witnesses as to his discharge does not bear scrutiny; while the testimony offered on the part of the claimant seems to the court to sustain the contention that Evje left the vessel in the manner alleged by the claimant. In the absence of any proof as to the value of his services, except as to the hiring of Evje at $100 a month, his claim will be disallowed beyond the sum of 14 days' pay, at $3.33 per day. Under the Peterson libel, the claimant shows reasonable grounds for disputing the claim, even if not able to make out a defense sufficient to prevent any recovery on the part of the libelant; and therefore the additional penal damages provided for in section 4529 will not be allowed. A decree may be entered allowing the libelant Peterson $88.33, and the libelant Evje $46.67, with one bill of costs. UNITED STATES v. DOMINGO et al. (District Court, D. Idaho, C. D. March 14, 1907.) No. 443. 1. WOODS AND FORESTS-FOREST RESERVATIONS-VALIDITY OF REGULATIONS EXCLUDING STOCK. That portion of rule 72 promulgated by the Secretary of the Interior which forbids the grazing upon or driving across a forest reservation of any live stock without a permit, except as otherwise allowed by regulation, and declares that such acts shall "constitute trespass, punishable by fine and imprisonment," so far as relates to the prohibition, is within the authority conferred on the Secretary by Act June 4, 1897, c. 2, § 1, 30 Stat. 35 IU. S. Comp. St. 1901, p. 1540], which provides that he "may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction; and any violations of the provisions of this act, or of such rules and regulations, shall be punished as is provided for in" Act June 4, 1888. Such rule is not a law, and for that reason an exercise of power which Congress could not delegate, but merely a regulation proper for making the law of Congress effective; and, while the part prescribing the punishment is beyond the authority conferred, it may be treated as surplusage, and does not invalidate the remaining portion, for a violation of which the offender may be prosecuted and punished as provided by the statute. 2. SAME-PENALTY FOR VIOLATION. The fact that the statute defines the penalty for its violation as the same prescribed by another statute does not require that the offenses should be the same to render the penalty applicable. On Demurrer to Indictment. N. M. Ruick, U. S. Dist. Atty. BEATTY, District Judge. The indictment is for trespass upon a forest reserve by driving and grazing sheep thereon without a permit.' To this indictment the defendants have demurred. By Act June 4, 1897, c. 2, § 1, 30 Stat. 34-36 [U. S. Comp. St. 1901, p. 1540], in modification of a prior act for the creation of forest reserves, it is, among other provisions, enacted, that: "The Secretary of the Interior ** may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction; and any violations of the provisions of this act, |