time you say she had been forging ahead, had she had her stern moved out from the dock? A. Yes, sir. Q. At the time the 134 passed her, how far would you say her stern had moved out from the dock? A. Well, it would be fully as far-150 feet from the dock-as it was from 134. I suppose she was about midway from the dock and 134. Q. And still forging ahead? A. Yes, sir. Q. Diagonally up the river all the time? A. Yes, sir; and swinging a little down all the time. Q. Now, as 134 went by the Minch, and the Minch's bow got abreast of the towline between you and the 134, what did the Minch do? Did she continue to do anything? A. No, sir; not that I noticed, just only lying still, and we forging ahead all the time I suppose, waiting until we passed by, so as to give her a chance to turn. Q. At the time, after she had got past the stern of the 134, did you anticipate any danger from her? A. No, sir. Q. And why? A. Well, I suppose that at a certain time when he thought it was necessary he would certainly back up his boat to avoid collision. Q. Was there anything, so far as you could see, to prevent his backing up his boat-anything in the river? A. No, sir. Q. And after the 134 had passed the bow of the Minch, and the bow of the Minch was along down abreast of the towline, what, if anything, did you do then? A. I thought he was waiting for us to pass, and I started at my wheel in order to give him all the room that I could. Q. Were you at the wheel at the time of that maneuver? A. Yes, sir. Q. You helped turn the wheel yourself? A. Yes, sir. Q. Did your boat's bow sway to port in obedience to that? A. Yes, sir. Q. How far to port? A. We had the 134 all the way from a point to a point and a half on our starboard bow. Q. At this time do you remember whereabouts the Hope and Fitzpatrick were? A. They hadn't passed by us. That is one reason I took the wheel, being a dangerous place, helping the man at the wheel so she wouldn't get the start of him and go over too far, so as to be in danger of the Hope and Fitzpatrick. Q. Supposing we say that you had put your wheel hard astarboard, did you anticipate that there might have been danger of your going over and getting mixed up? A. Well, I don't think that I could put my wheel hard astarboard, for I would have went into it. I had to give the Minch all the room I thought it was perfectly safe to do. Q. At the time you put your helm hard astarboard, did you then anticipate any danger of collision with the Minch? A. No, sir. Q. And why? A. I supposed when he saw it he would back his boat up, to avoid collision. Q. Where was the Minch when you first anticipated that he wasn't going to back up? A. She was right close onto us within fifteen or twenty feet of us. Q. When you first realized or anticipated that there was danger of collision, what did you do? A. When I saw there was no way of avoiding collision-when he was pretty near amidships I put my wheel hard aport, so as to swing her stern to port, to make the blow as light as I could. Q. At the time you put your helm hard aport, how was your boat heading, with reference to the 134 ahead of it? A. When I put my wheel to port she was heading still to port of 134. Q. About how much? A. A point to a point and a half. When I got her off as far as I could, I held her until I saw there was no possible way except for the Minch to come into us, and then I shifted my wheel. She was lying perfectly still until I shifted my wheel. Q. What would be the effect, then, upon your vessel's stern, of throwing your wheel hard aport when she was in that position? A. It would throw her stern to port. Q. Away from the Minch? A. Yes, sir. Q. Where did the Minch's bow strike your boat? A. About amidships. Q. You were at that time, I understand you, on the wheelhouse, after it occurred? A. Yes, sir; I was at the wheel. Q. State, to the best of your judgment, what the distance of the stern of the Minch was from the Gadfield coal dock at the time her bow struck the 104? A. I would say 500 feet. Q. You may state whether up to that time there was anything in the river, or anything apparent on board the Minch, or anywhere in that vicinity, which would indicate to you that there was any reason why the Minch could not back? A. No, sir. Q. I will ask you whether the Minch gave any danger signals, or any signals to indicate that she was disabled or could not back? A. No, sir. Q. And was there anything between her stern and the dock that you know of? A. No, sir."

The situation was one which was brought about by the gross negligence of the Minch. In such circumstances, it is not enough for

her to cast doubt upon the management of the barge. The burden is upon her to establish by clear and convincing evidence that the situation as the barge should have judged it was one which required her to at once put her helm hard over, instead of half over, as she did. The Ohio, 91 Fed. 547, 33 C. C. A. 667, 672; The City of New York, 147 U. S. 73, 84, 13 Sup. Ct. 211, 37 L. Ed. 84; The Oregon, 158 U. S. 187, 197, 15 Sup. Ct. 804, 39 L. Ed. 943; The Victory, 168 U. S. 410, 423, 18 Sup. Ct. 149, 155, 42 L. Ed. 519; The Umbria, 166 U. S. 404, 409, 17 Sup. Ct. 610, 612, 41 L. Ed. 1053. In the case of The Victory, cited above, the court said:

"As between these vessels, the fault of the Victory being obvious and inexcusable, the evidence to establish fault on the part of the Plymouthean must be clear and convincing in order to make a case of apportionment."

In The Umbria, cited above, Justice Brown said:

"Indeed, so gross was the fault of the Umbria in this connection that he should unhesitatingly apply the rule laid down in The City of New York, 147 U. S. 72, 85 [13 Sup. Ct. 211, 37 L. Ed. 84], and The Ludwig Holbert, 157 U. S. 60, 71 [15 Sup. Ct. 477, 39 L. Ed. 620], that any doubts regarding the management of the other vessel, or the contribution of her faults, if any, to the collision, should be resolved in her favor."

The circumstances were not such as to justify an apportionment of damages simply because the master of the barge judged that the Minch would take timely measures to avert a collision. The negligence of the master of the Minch in not observing his own unreasonable encroachment upon her course, or in not taking timely measures to stop his headway out into the river, is a sufficient explanation of the collision which ensued. The Servia, 149 U. S. 144, 153, 13 Sup. Ct. 817, 37 L. Ed. 681; The Ulster, 1 Mar. L. C. 234. Whether the barge might not, with safety, have starboarded more than she did, and whether, if she had put her helm hard to starboard, the collision would have been avoided, may be close questions. Indeed, we may concede that the question is a debatable one, whether, under all the circumstances, she may not be regarded as in fault for not putting her helm hard astarboard, instead of halfway over. But it is not enough in any given case to say that the sequel shows that, if a particular thing had been done by the innocent vessel, the collision would have been avoided. "The question in all such cases is whether, in the exercise of due care and caution in the management of her at the time in any given case, such direction should have been given." Williamson v. Barrett, 13 How. 100, 108, 14 L. Ed. 68. Neither is it enough, when the negligence of the one vessel is great, to condemn the other to a division of damages, that the question is a close one as to whether she might not have done something she did not do to avoid the consequences of the other's negligence. The evidence that the situation was one which required her to do more than she did must be clear and convincing, for all questions of doubt should be settled in her favor. We do not think the evidence establishes a case which was so plain as to make it culpable negligence for the barge to presume that the Minch would not be guilty of the astonishing fault of deliberately running into the ascending tow, and that she should be condemned for presuming, under the

facts we have stated, that the Minch would stop her heading toward the 104 by either backing, or by a radical change in her steering, in time to avoid collision. If the circumstances had indicated that the Minch was disabled or had not seen the tow, a different case would be presented.

The decree of the district court condemning the Minch and denying a division of damages is affirmed.

(128 Fed. 584.)

BUCKINGHAM v. ESTES.

(Circuit Court of Appeals, Sixth Circuit. March 16, 1904.)

No. 1,245.

1. APPEAL OBJECTIONS TO PARTIES-TIME.

Where suit was brought by a married woman against her husband and his trustee in bankruptcy to enforce a resulting trust of certain land standing in his name, an objection that a judgment in her favor was erroneous because she, being a married woman, had no power to sue without the intervention of a trustee or next friend, and that no decree to confesso was taken against her husband on his failure to answer, could not be made for the first time on appeal.

2. SAME-BANKRUPTCY-RESULTING TRUSTS-PARTIES.

A bankrupt is not an indispensable party to a suit by his wife against his trustee in bankruptcy to enforce a resulting trust of real estate scheduled as a part of the bankrupt's assets.

3. SAME-RECORD.

Where, on appeal from an order allowing a claim against a bankrupt's estate, the transcript failed to disclose the date of the adjudication, an objection that the allowance was erroneous because the claim was not proved within one year after the adjudication, as required by Bankr. Act, § 57n (Act July 1, 1898, c. 541, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444]), was unavailable.

4. SAME PROOF OF CLAIM-ACTIONS.

Where a bankrupt's wife brought suit against the bankrupt and his trustee to enforce an alleged resulting trust concerning lands transferred as a part of the bankrupt's assets within a year after the adjudication of bankruptcy, in which she subsequently recovered a decree, the claim was sufficiently "proven," within Bankr. Act, §§ 57, 57n (Act July 1, 1898, c. 541, 30 Stat. 560, 561 [U. S. Comp. St. 1901, pp. 3443, 3444]), requiring claims to be proved within a year, and authorizing amendment of the claim after a year has elapsed.

5. SAME-DECREE-ACCOUNTING-REVIEW.

Where, in an action by a bankrupt's wife to enforce a resulting trust of land assigned as a part of the bankrupt's assets, the court rendered a decree in plaintiff's favor and adjudged her entitled to rents, and there after referred the matter to the master, only to determine the amount of such rents, an appeal from a decree confirming the master's report settling the amount of the rents did not authorize a review of the wife's right to recover any rents under the facts.

6. ASSIGNMENT OF ERROR.

Where, on appeal from an order confirming a master's report as to the amount of rents a bankrupt's wife was entitled to under a decree en

¶ 1. Appeal and review in bankruptcy cases, see note to In re Eggert, 43

C. C. A. 9.

¶2. See Bankruptcy, vol. 6, Cent. Dig. § 448.

forcing a resulting trust of land held by the bankrupt, none of the errors assigned raised any question as to the correctness of the decree in favor of the wife for rents and profits, but all of them related to the question of amount, the wife's right to recover rents could not be reviewed. 7. SAME-SUFFICIENCY OF EVIDENCE-FINDINGS OF MASTER-AFFIRMANCE.

Where the trial court affirmed findings of a master on an accounting of rents, such finding will not be reversed on appeal, unless a plain mistake is definitely pointed out.

Appeal from the District Court of the United States for the Western District of Tennessee.

In Bankruptcy.

The appellee, the wife of Z. N. Estes, a bankrupt, filed her petition in the bankruptcy proceeding for the purpose of enforcing a resulting trust in a certain parcel of land which the trustee in bankruptcy was about to sell as the property of the bankrupt, and also for the purpose of recovering against the bankrupt's estate the rent received from said land by the bankrupt as trustee for the sole and separate use of his wife, the petitioner. The bankrupt trustee and the bankrupt were made parties, and duly served with process. Such proceedings were had as resulted in a decree in favor of Mrs. Estes, finding that the bankrupt, as trustee of a fund to the sole and separate use of his wife under the will of her father, had invested this fund in the land in question, and taken the title to himself without the knowledge or consent of his cestui que trust. The decree directed the trustee to convey the land to the petitioner to her sole and separate use. The court also decreed that the bankrupt was liable to account to petitioner for the rents collected by him as trustee since his qualification as her trustee, and allowed her claim for rents and profits, without interest, and ordered that she "be admitted to prove the same as a debt against the individual estate of the bankrupt." For the purpose of ascertaining the amount of her claim so allowed to be proven, the standing master of the court was ordered to take and state an account "of all rents, profits, or income which the said Z. N. Estes has received from said estate since March 27, 1871, up to this date," and that he will report same, without interest, to this court. It was further ordered that, "upon the coming in of this report showing the sums due petitioner upon said account, she will stand as a creditor against the individual assets scheduled as his, to the extent of such amount, in the settlement of this estate in bankruptcy." The petition of Mrs. Estes was filed February 19, 1902. This decree was made on October 25, 1902. The trustee filed a report December 15, 1902, fixing petitioner's claim at $5.338.90. January 15, 1903, Mrs. Estes filed a formal proof of debt, based upon this report. March 28, 1903, exceptions to this report, filed by the trustee, were overruled, and the report confirmed. By this decree the referee was directed "to place said claim upon the list of allowed claims and dividends as provided by Form No. 40 of the forms in bankruptcy, to be recorded by him and delivered to the trustee, to the end that same may be paid by the trustee as other allowed claims against the individual estate of Z. N. Estes herein." On April 4, 1903, the trustee filed his petition, reciting that he was "much aggrieved by a decree entered herein on the 28th of March, 1903, allowing Mrs. Janet Collier Estes to prove her claim as a creditor against the individual estate of Z. N. Estes in this proceeding to the extent of $5,338.90," and praying an appeal therefrom.

Carroll, McKellar, Bullington & Biggs, for appellant.

J. P. Holt, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court.

The trustee has entered a motion here to dismiss the petition of Mrs. Estes, the appellee, because she is a married woman, and can

not sue in her own name without the intervention of a trustee or next friend. Without regard to the merits of this motion, such an objection cannot for the first time be taken upon appeal. Rankin v. Warner, 2 Lea, 302. No objection was taken below, and no error has been assigned. The motion is therefore denied.

He has also moved to dismiss her suit because her husband, the bankrupt, who was made party, did not answer, and no decree pro confesso was taken. This is equally untenable. No such objection was made below, and no error has been assigned because the court proceeded to a decree without a pro confesso against the bankrupt. As the bankrupt had scheduled the property sought to be recovered as his own, the legal title vested in his trustee, who did answer and defend. The bankrupt was therefore not an indispensable party to the petitioner's suit. A formal objection of this kind cannot for the first time be made in this court. Story v. Livingston, 13 Pet. 359, 10 L. Ed. 200; Carey v. Brown, 92 U. S. 171, 23 L. Ed. 469.

The first error assigned is that the court erred in allowing Mrs. Estes' claim for rents and profits against the bankrupt, because the claim was not proved within one year after adjudication of bankruptcy, as required by section 57n, Bankr. Law (Act July 1, 1898, c. 541, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444]. One insurmountable objection to this assignment is that the date of adjudication nowhere appears in the transcript of the record. The counsel for appellee called attention to this defect in a printed brief bearing the file mark of November 24, 1903. This cause was not heard until February 8, 1904, yet no step was taken to supplement the transcript so as to show the date of adjudication. The presumptions are in favor of the correctness of the action of the court below, and if we are to reverse it must be upon a transcript which will affirmatively show the ground upon which the action complained of was taken. But if we assume that the formal proof of Mrs. Estes' claim for rents and profits, filed January 15, 1903, was not made until more than one year after date of adjudication, it does not appear, and it is not claimed, that her petition setting up her claim in the bankrupt proceeding was not filed within one year after the adjudication. It would be a narrow construction of sections 57 (30 Stat. 560 [U. S. Comp. St. 1901, p. 3443]) and 57n which would not regard a claim so presented and litigated in the bankrupt proceeding as "proven" within the limitation of the section. A claim "proven" within the year is amendable after the lapse of the year, and the court below probably regarded her petition as a "statement under oath, in writing, signed by a creditor, setting forth the claim," etc., and therefore subject to amendment, to comply with the further formalities of section 57. In this the court did not err. Hutchison v. Otis, 190 U. S. 552, 555, 23 Sup. Ct. 778, 47 L. Ed.

1179.

The solicitors for the appellant, in their brief, present an argument against any allowance of the claim for rent, based upon the contention that Mrs. Estes permitted her husband to collect and hold and use these rents for his own purposes, without at any time objecting or calling him to account. The liability of the bankrupt to the petitioner for the rents collected as trustee was adjudged by the decree of Oc