Summit County. BANKRUPTCY-PAYMENT. [Summit (8th) Circuit Court, April Term, 1905.] Winch, Henry and Parker, JJ. (Judge Parker of the Sixth Circuit sitting in place of Judge Marvin.) AMERICAN SUR. Co. OF NEW YORK V. AKRON SAV. BANK Co. PAYMENT BY SURETY OF DEPOSITARY TO TRUSTEES IN BANKRUPTCY IS NOT PAYMEN↑ TO THE GOVERNMENT. Where a surety on the bond of a depositary for the trustees in bankruptcy of an insolvent company, on the depositary becoming insolvent, makes payment to the trustees on the penalty of the bond, such payment is not made "to the government" so as to entitle the surety to a preference over the other creditors of the insolvent depositary within the meaning of Sec. 3468 U. S. Rev. Stat. ERROR to Summit common pleas court. D. A. Doyle, for plaintiff in error. Grant & Sieber, for defendant in error. HENRY, J. The Akron Savings Bank Company was appointed by the United States district court, for the northern district of Ohio, as one of the depositaries for the funds of Aultman, Miller & Company in bankruptcy. It was required to give a bond to the United States of America in the sum of $220,000, which it did, with the American Surety Company of New York as its surety, to secure such deposits as the trustees might from time to time make in said bank. At the time of the failure of the Akron Savings Bank, the trustees in bankruptcy of Aultman, Miller & Company, had on deposit in said bank, of the funds of said bankrupt, the sum of $18,543.11. The receivers have paid to the trustees a first dividend amounting to 10 per cent of this amount, to wit, $1,854.31, leaving a balance of $16,688.80 still due to the trustees. The trustees made demand on the Surety Company for this balance and the demand was complied with. The claim of the American Surety Company, is for said sum of $16.688.80, with interest from August 3, 1904. It furthermore prays that it may have a preference for the full amount thereof and that said claim may be discharged before payment to any other creditor of the Akron Savings Bank. Section 3466 U. S. Rev. Stat. provides for the priority of payment of all claims due to the United States. Section 3468 U. S. Rev. Stat. ex Surety Co. v. Savings Bank Co. tends the same priority to sureties on bonds given to the United States. Said section reads as follows: "Whenever the principal in any bond given to the United States is insolvent, or whenever, such principal being deceased, his estate and effects which come to the hands of his executor, administrator, or assignee, are insufficient for the payment of his debts, and, in either of such cases, any surety on the bond, or the executor, administrator, or assignee of such surety pays to the United States the money due upon such bond, such surety, his executor, administrator, or assignee, shall have the like priority for the recovery and receipt of the moneys out of the estate and effects of such insolvent or deceased principal as is secured to the United States; and may bring and maintain a suit upon the bond, in law or equity, in his own name, for the recovery of all moneys paid thereon." There is no doubt that the same right of priority, which belongs to the government, attaches to the claim of an individual, who, as surety, has paid money to the government. And the same is perhaps true where a surety pays money, as it were, for the government of the United States, in a case where the latter is under a merely moral obligation to restore to persons who have suffered loss through the malfeasance of a federal officer or employe such sums as may be recovered or recoverable by it in that behalf. See United States v. National Surety Co., decided by the United States district court of Nebraska, a memorandum opinion wherein has been submitted to us. It is claimed here that a trustee in bankruptcy, who is designated in the bankruptcy act (30 U. S. Stat. at L. 544) as an "officer," falls within the same rule. It is said that inasmuch as he is required by law to deposit all moneys of the bankrupt's estate coming into his possession in depositaries designated by the federal court having jurisdiction, he, as well as such depositaries, must be deemed to be acting for the United States and as an arm of the government in the administration of such funds for the uses and purposes provided by the bankruptcy act. We think the analogy thus invoked is pressed too far. The sureties in such a case as this have the option to act or not to act in that capacity. They have the same means of judging the insolvency of the depositary as the ordinary rank and file of individual depositors. To give such sureties a preference would be a manifest injustice which we think the law does not contemplate. The United States has provided by law for suretyship of this character in order to preserve the integrity of bankrupt's estates, but it is not nor has it assumed to become the protector Summit County. of such sureties by giving them the benefit of the preference which in other cases it claims for itself. We hold that the payment made by the surety in this case, was not made to the United States, either directly or indirectly, within the meaning of the act above quoted. The judgment or order below is affirmed. Winch and Parker, JJ., concur. RAILROAD COMPANY'S LIEN FOR DEMURRAGE CHARGES. [Franklin (2nd) Circuit Court, May 4, 1905.] Dustin, Wilson and Sullivan, JJ. PITTSBURGH, C. C. & ST. L. RY. v. H. L. MOOAR LUMBER CO. 1. DEMURRAGE-LIEN FOR SAME. A railroad company has a common-law lien upon the property in a car, for its proper demurrage charges against such car, and may enforce the same by refusing to deliver such property until payment of the demurrage charges has been made. 2. LIEN EXISTS INDEPENDENTLY OF STIPULATION IN CONTRACT OF SHIPMENT. Such lien exists independently of any stipulation therefor in the contract of shipment, and, in an action to enforce the same, it is not necessary to aver or prove a special contract with reference thereto. ERROR to Franklin common pleas court. Henderson & Livesay and K. E. Burr, for plaintiff in error. A. E. Addison, for defendant in error, Huston. M. E. Thrailkill, for defendant in error, H. L. Mooar Lumber Co. On June 23, 1902, Southern Railway car No. 8,022, loaded with lumber consigned to the defendant in error, the H. L. Mooar Lumber Company, arrived in the yards of the plaintiff in error, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company at Columbus, notice of the arrival of the car being sent to the defendant in error by the plaintiff in error on the same day. On the following day the defendant in error sent its men to the railroad yards to inspect the lumber, and the drivers, after looking about the yards and being unable to find the car, returned to the lumber company's office and reported the car not there. The drivers made other trips to the yards from time to time in search of the car, consuming Railway v. Lumber Co. from twelve to fourteen days in this way, but they failed to go to the railroad offices and ask whether the car had arrived or to make inquiry for the car of the railroad yard men, who knew and could have told them its location. On July 5 the drivers went to the railroad offices and there paid the freight on the car, but during the interim between June 23 and July 5, demurrage charges to the amount of eight dollars had accrued and the railroad company refused to place the car where it could be unloaded until these charges had been paid. The lumber company refused to pay the demurrage, and the railroad company, declining to allow the car to be unloaded, continued to hold it until December 23, at which time the demurrage amounted to $138 and the lading of the car was turned over to the defendant in error, Archibald H. Huston, for storage, Mr. Huston advancing the company's charges in accordance with the usual custom existing between himself and the railroad company. On December 24, while the lumber was being unloaded and hauled from the car to the storage warehouse, the lumber company seized the lumber under a writ of replevin, and in February, 1904, the case was tried to a jury, the jury, under instructions from the court, rendering a verdict against the railroad company for its demurrage, the court's charge being, in substance, that, in the absence of a contract, no lien in favor of a railroad company for its demurrage charges exists. The following was the trial judge's charge upon this point: Upon receipt of the notice (of the arrival of the car) it was the duty of the plaintiff to go to the office of the railway company and pay the freight or tender the same. It was not sufficient for him to send his man to the railway yards to hunt for the car of lumber. The plaintiff, therefore, could not object to a charge for demurrage on this car 8,022 after the two days, as he did not pay the freight and demand that the car be turned over to him to be unloaded. "But the company could not demand, on its part, that this demurrage should be paid as a condition of turning over the car, unless it had a lien for the demurrage. Now in the absence of any contract for such a lien, it does not exist at law and the company must collect its claim for demurrage as ordinary debts are collected and cannot hold the property for the demurrage. I find there is no evidence in the case of such a contract as to this car, and the defendant, the railway company, does not state in its answer that there was a stipulation in the bill of lading that such charges should be a lien. It follows, therefore, Franklin County. that as to this car 8,022, the plaintiff having paid the freight, was entitled to the possession of the lumber and your verdict should be in his favor." A motion for new trial having been overruled and judgment rendered against the railroad company, a reversal of the judgment is here sought on the sole ground of error in the court's charge to the jury. DUSTIN, J. "We think under the authorities cited in the brief of plaintiff in error that the railway company had a common-law lien on the lumber for 'demurrage,' and that it was not necessary to aver or prove a special contract with reference thereto. It was therefore error for the court to charge that in absence of averment and proof as to the lien it did not attach, and that the verdict as to car 8,022 should be for the lumber company. "The special findings of fact were not inconsistent with the general verdict. "The judgment of the common pleas court on the first cause of action will therefore be reversed and remanded for new trial. "As to the second and third causes of action the case is not before us, a new trial having been granted below, and no final order or judg ment rendered." Wilson and Sullivan, JJ., concur. MASTER AND SERVANT. [Hamilton (1st) Circuit Court, February 7, 1905.] Jelke, Swing and Giffen, JJ. CHARLES BOLDT GLASS Co. v. GEORGE HARRIS. 1. WHO ARE FELLOW SERVANTS. Where the duties of a laborer required him to wheel brick and mortar to the foot of a stack and fasten a bucket to a rope when directed to do so by the bricklayers and their helpers on the stack and the bricklayers and their helper had no other authority or control over the laborer, the lat ter and the former are fellow servants. 2. NO RECOVERY FOR INJURY UNLESS PROOF SHOWS HOW CAUSED. If a laborer sustain an injury by reason of a brick falling from the top of a stack he cannot recover from his employer for his injury in the absence of proof showing who caused the brick to fall or that it fell through the faulty construction of a scaffold by defendant, his employer. ERROR to Hamilton common pleas court. |