amendable. In re Plymouth Cordage Co., 135 Fed. 1000, 1003, 68 C. C. A. 434, 437. The creditors who now complain filed no demurrer and made no objection. In that way they waived this defect as fully as they would have done if they had been present at the adjudication and had permitted the introduction of evidence and the decision without objection. Can there be any doubt that the admission of the evidence and the judgment in bankruptcy would have been permissible. and conclusive upon them under such circumstances? The purpose of a pleading is to advise the opposing parties and the court of the facts constituting the cause of action. The petition in this case prayed that the Widell Company might be adjudged a bankrupt. These creditors knew the law, and hence they knew that the fact that the corporation was principally engaged in manufacturing or trading was essential to the adjudication. The petition contained the allegation that the corporation was engaged in manufacturing concrete arches and bridges, in manufacturing, dressing, and selling stone, and in railroad and ditch contracting; and no one could have read it in the light of the bankruptcy law without notice that it contained a substantial, though incomplete, statement that the corporation was principally engaged in a manufacturing pursuit. The sufficiency of this pleading was not challenged until more than a month after the adjudication upon it, and after verdict or judgment an objection that the petition fails to state facts sufficient to constitute a cause of action is tenable only when the pleading fails to allege the substance or foundation of a good cause of action, and the fact that it is otherwise defective, informal, indefinite, or incomplete is no longer material. Less v. English, 85 Fed. 471, 476, 29 C. C. A. 275, 280; Laithe v. McDonald, 7 Kan. 254, 261; Rush v. Newman, 58 Fed. 158, 160, 7 C. C. A. 136, 138; City of Plankinton v. Gray, 63 Fed. 415, 11 C. C. A. 268. The petition contained no statement that the Widell corporation was not engaged principally in a manufacturing pursuit, and no showing that the court was without jurisdiction of the case; but it set forth the substance of a good cause of action, and it was impregnable to attack after the adjudication.

The argument of counsel that it was the duty of the court below to avoid the adjudication, and to allow their clients to answer, upon the ground that the court was without jurisdiction to render the adjudication, because it was not true that the bankrupt was principally engaged in a manufacturing pursuit, and because the record did not show that it was, but that it was not thus engaged, overlooks the effect of the adjudication.

The contention that the fact that the Widell Company was principally engaged in manufacturing conditioned the jurisdiction of the court and the validity of the adjudication, that the judgment is a nullity because this fact did not exist, and that its invalidity may be shown at any time by collateral attack, or otherwise by proof that the Widell Company was not engaged in any pursuit which subjected it to adjudication in bankruptcy, disregards the fundamental distinction between the facts essential to the jurisdiction of a court over the subject-matter and the parties and those requisite to establish the cause of action. Jurisdiction of the subject-matter and of the parties is the right to hear and deter

mine the suit or proceeding in favor of or against the respective parties to it. The facts essential to invoke this jurisdiction differ materially from those essential to constitute a good cause of action for the relief sought. A defective petition in bankruptcy, or an insufficient complaint at law, accompanied by proper service of process upon the defendants, gives jurisdiction to the court to determine the questions involved in the suit, although it may not contain averments which entitle the complainant to any relief; and it may be the duty of the court to determine either the question of its jurisdiction or the merits of the controversy against the petitioner or plaintiff. Facts indispensable to a favorable adjudication or decree include all those requisite to state a good cause of action, and they comprehend many that are not essential to the jurisdiction of the suit or proceeding. The fact that the Widell Company was engaged in a manufacturing pursuit was not of the former, but of the latter, class. It was not essential to invoke the jurisdiction of the court over the parties to the proceeding and the property it involved, because the act of Congress gave that court, upon the filing of the petition of the creditors, jurisdiction to hear and determine the questions it presented, upon proper service of the subpoena upon the defendant. The facts which conditioned the jurisdiction of the court were the filing of the petition and the service of the subpoena. In re Plymouth Cordage Co., 135 Fed. 1000, 1004, 68 C. C. A. 434, 438.

Concede, for we do not stop to consider or decide, that the nonexistence of either of these facts might be shown at any time, by collateral attack or otherwise, to destroy the validity of the adjudication, and this is the extent of the effect of many of the authorities cited by counsel here. Williamson v. Berry, 8 How. 495, 540, 12 L. Ed. 1170; Adams v. Terrell (C. C.) 4 Fed. 796, 800. Nevertheless, the fact that the Widell Company was, or that it was not, principally engaged in manufacturing, was not of this class. It did not condition the jurisdiction of the court, but the judgment which it ought to render, only. The court had the same jurisdiction to decide the issues between the parties, whether the Widell Company was or was not principally engaged in a manufacturing pursuit. The only difference the determination of that issue made was that if it was so engaged the court should have given judgment for the petitioners, and if it was not thus occupied it should have rendered judgment against them. The jurisdiction and the duty to decide remained in the court, whichever way it was its duty to determine the issue. The jurisdiction of a court is not limited to the power to render correct decisions. It is the power to decide the issues according to its view of the law and the evidence, and its wrong decisions are as conclusive as its right ones. It empowers the court to determine every issue within the scope of its authority, whether its decision is right or wrong, and every judgment or decision so rendered is final and conclusive upon the parties, unless reversed by writ of error or appeal or vacated by some direct proceeding. The filing of the petition for the adjudication and the service of the order to show cause upon the Widell Company conferred plenary jurisdiction of this proceeding upon the court below. The power was thereby vested in, and the duty was imposed upon, it to decide whether or not the Widell Company was principally engaged in a manufacturing pursuit, because the determination

of that issue was indispensable to the adjudication in bankruptcy. The adjudication is therefore a demonstration that the court below adjudged that the Widell Company was thus engaged, since it could not have lawfully made the adjudication without such a decision. That judgment, therefore, conclusively estops the complaining creditors here and everywhere from proving the contrary to avoid the adjudication in bankruptcy until the latter is reversed or vacated in some direct proceeding. Dowell v. Applegate, 152 U. S. 327, 340, 14 Sup. Ct. 611, 38 L. Ed. 463; Foltz v. St. Louis & S. F. R. Co., 8 C. C. A. 635, 637, 60 Fed. 317, 319; Board of Commissioners v. Platt, 25 C. C. A. 87, 90, 79 Fed. 567, 570.

This conclusion has not been reached without a thoughtful perusal of the opinion of the referee, adopted by the court, to the contrary, in Re Elmira Steel Co. (D. C.) 109 Fed. 456, 479; but that portion of the opinion which relates to this question does not commend itself to our judgment. The only showing upon the face of the record regarding the occupation of the Widell Company is the averment in the original petition which has been set forth.

The argument of counsel for the creditors that the adjudication is void, because the fact appears upon the face of the record that the Widell Company was not engaged principally in a manufacturing pursuit, and because the fact does not appear upon the face of the record that it was so engaged, is untenable (1) because the record does not sustain the position that it shows that the corporation was not thus engaged; (2) because the adjudication was a conclusive judgment that it was so employed, since the petition contained a sufficient averment of that fact, after judgment; (3) because that fact was not jurisdictional; and (4) because, if it had been, its absence from the record would not have destroyed the estoppel of the adjudication. While the jurisdiction of the national courts is limited, they are not inferior courts, and their judgments possess every attribute of finality and estoppel which pertains to those of courts of general jurisdiction. McCormick v. Sullivant, 10 Wheat. 192, 199, 6 L. Ed. 300; Ex parte Watkins, 3 Pet. 193, 207, 7 L. Ed. 650; Des Moines Nav. & R. Co., v. Iowa Homestead Co., 123 U. S. 552, 557, 559, 8 Sup. Ct. 217, 31 L. Ed. 202; Edelstein v. U. S. (C. C. A.) 149 Fed. 636. Thus in McCormick v. Sullivant diversity of citizenship was indispensable to the jurisdiction of a federal court which had rendered a judgment, and it nowhere appeared in the record. But the judgment was held to be conclusive, in the absence of any writ of error to reverse it. And in Des Moines Nav. & R. Co. v. Iowa Homestead Co., 123 U. S. 552, 557, 559, 8 Sup. Ct. 217, 31 L. Ed. 202, the Supreme Court said:

"Although the judgments and decrees of the Circuit Courts might be erroneous, if the records failed to show the facts on which the jurisdiction of the court rested, such as that the plaintiffs were citizens of different states from the defendants, yet they were not nullities, and would bind the parties until reversed or otherwise set aside."

The adjudication in bankruptcy in this case, therefore, until reversed or vacated in some direct proceeding, conclusively estopped all the parties to this proceeding, including the petitioning creditors here, from claiming froin the record or upon evidence aliunde that the Widell Com

pany was not principally engaged in a manufacturing pursuit and was not rightly adjudicated a bankrupt.

A single question remains. A proceeding in bankruptcy is a continuous suit. There are no terms of the bankruptcy court. It is always open, and until the termination of the pending suit that court has the power to re-examine its orders therein upon a timely application in an appropriate form. Sandusky v. National Bank, 90 U. S. 289, 293, 23 L. Ed. 155; Lockman v. Lang, 132 Fed. 1, 4, 65 C. C. A. 621, 624. Was the court below guilty of any abuse of its discretion in that it denied the motion of the petitioners here to vacate the adjudication and to permit them to answer and litigate the question whether or not the Widell Company was principally engaged in manufacturing? The creditors who complain had been aware of the filing of the petition in ample time for them to demur to it, or to interpose an answer and present the question they now seek to litigate. They had known that receivers of the bankrupt's estate had been appointed, and that they were making agreements about the contracts of the bankrupt, many weeks before their motion was presented, and they took no action to assail the adjudication or to stay the proceeding in the administration of the estate until nearly two months after the petition was filed. The theory of the bankruptcy law is that estates should be converted into money and distributed among the creditors as speedily as practicable. After a proceeding under it is commenced, the relations of the parties and the nature of the property involved are subject to frequent and rapid changes. Hence creditors who would assail the adjudication or the other orders of the court, and would thereby stop the transformation of the property of the bankrupt and its distribution among his creditors, should act with reasonable promptness after they receive notice of the proceeding and of the reasons for their objection. In view of the delay and neglect of the petitioners, and the changes in the condition of the property and in the relations of the parties interested in this estate, between the filing of the petition and the presentation of their motion, the record fails to persuade that the court below was guilty of any abuse of its discretion when it denied it.

The question whether or not the petition for revision was filed in proper time has not been considered, and no opinion is expressed upon it, because the same result has been reached upon a consideration of the merits of the case that would have followed if the motion to dismiss the petition had been granted.

The petition must be dismissed in any event; and it is so ordered.

WHITEHOUSE v. EDWARDS.

(Circuit Court of Appeals, Ninth Circuit. February 11, 1907.)

No. 1.351.

1. NEGLIGENCE-WHEN QUESTION FOR JURY-CONFLICTING TESTIMONY. An action to recover for a personal injury, alleged to have resulted from defendant's negligence, was properly submitted to the jury, where, although there was direct and positive testimony to a fact which would tend to acquit defendant of negligence, there was other testimony and circumstances tending to discredit it, and to make it proper for the jury to determine its credibility.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 298.]

2. SAME-INSTRUCTIONS-REFUSAL OF REQUESTS.

The action of a trial court in giving and refusing instructions, in an action for personal injury, held without error.

In Error to the District Court of the United States for the Second Division of the District of Alaska.

Henry M. Hoyt, James W. Bell, and Edward W. Rice, for plaintiff in error.

George D. Schofield and Albert H. Elliot, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

WOLVERTON, District Judge. On September 17, 1904, the Johnston Lighterage Company was under contract with the Nome Fuel Company to transport fuel oil from the ship Rosencranz to the shore at Nome, Alaska. Its engagement was to bring the lighters or barges used for carrying the oil from the ship's side to the beach, and to furnish men for the crafts. In pursuance thereof, it employed the defendant, being the plaintiff in error, to do the towing with his tugs; and the Nome Fuel Company, the consignee, also employed defendant to convey the oil from the barges to shore. The plaintiff was the employé of the lighterage company upon the barges. The defendant used a pump for conveying the oil to shore, which was operated through means of an engine, and a derrick erected for handling a large iron pipe, 6 inches in diameter, and about 60 feet in length, extending from the shore seaward to the barges, with an elbow at right angles at the outer end, and a further extension of 6 feet. The derrick was adjusted to a stationary post, or mast, as it is termed, set in the ground, on the beach. near the water's edge, and the engine was stationed farther in shore, so as to make its distance from the barges, while being discharged, about 150 feet; the mast being about 60 feet, or the length of the pipe, from the hatches of such crafts. The defendant had charge of the operation of the engine and derrick for lowering the outer end of the pipe into the holds of the barges, and, when discharged of the oil, for raising it again in place; his place of duty being at the engine. He had in his employ a man at the winch, and another for firing the engine. The duties of plaintiff were to see that the pipe when lowered was conducted into the holds of the barges, and, when being raised, that the