THE SAMUEL E. BOUKER. (District Court, D. New Jersey. October 16, 1905.) TOWAGE-INJURY TO TOW-LIABILITY OF TUG. A tug is not an insurer of its tow, and is liable for loss or damage to it only in case of negligent management of the tug or in the bandling of the tow. Held, under the facts disclosed in this case, that the tug was not negligent. [Ed. Note. For cases in point, see vol. 45, Cent. Dig. Towage, §§ 11-29.] (Syllabus by the Court.) Benedict & Benedict, for libelant. Wing, Putnam & Burlingham and James Forrester, for claimant. CROSS, District Judge. The P. Sanford Ross corporation owns mud scows Nos. 1 and 10, which were found adrift in the lower part of the New York Bay on the 4th day of May, 1905, and rescued by the steam tug John T. Pratt under circumstances disclosed in the case of Abner P. Downer et al. v. Mud Scows Nos. 1 and 10, 141 Fed. 477. The evidence in the two cases was taken together, and they were argued at the same time. The libelant in this case claims that it has been dam aged to the extent of whatever sum might be awarded by the court against its scows Nos. 1 and 10 in the above-mentioned suit. In my opinion, however, the facts do not warrant the claim made by the libel. The owner of the Bouker was not an insurer of its tow. The tug is liable only in case of its negligence. Negligence consists in the want of ordinary skill in navigation, and of the exercise of such care and diligence in handling the tow as a man of ordinary prudence would exercise in the preservation of his own property. The Niagara (D. C.) 20 Fed. 152. The duty imposed upon a tug is to use the caution and skill which belong to prudent navigators. The Florence (D. C.) 88 Fed. 302, and cases cited. This is the rule of law applicable to the case under consideration. If the Bouker managed her tow with reasonable care and skill under the circumstances, it cannot be held liable for its loss. The burden of proving negligence is upon the libelant, but it has not sustained this burden; indeed, there is no proof whatever of the negligent management of the Bouker. Practically the only claim of negligence made in the case is that the captain of the Bouker did not keep a man aloft during the entire period of its search for the missing scows. The evidence shows, however, that he did from time to time send a man there for that very purpose. It is quite apparent that to have kept a man there continuously would have been futile, when, if we accept the testimony of the captain of the mud scows as true, only the smokestack and light boxes on top of the pilot house of the Bouker were at any time prior to the lifting of the fog discernible; but, apart from their tes timony, the other testimony in the case shows that the fog was low and very dense, and hence the mud scows, lying close to the water, would. under the circumstances, have been completely enveloped by it. There is no pretense that there was any negligence in the loss of the scows. On the contrary, the evidence shows that the towline attached to them (a comparatively new one) was cut by the propeller of the tug crossing it in the fog, and that after they were lost, the captain of the Bouker made diligent and careful search to find them. Since no negligence in the management by the Bouker of its tow is disclosed, the libel against it will be dismissed, with costs. FRENZ v. HUME et al. (District Court, N. D. California. No. 13,401. October 24, 1905.) 1. SHIPPING-MASTER-WAGES-ATTEMPTED ABANDONMENT OF VESSELS TO IN SURERS. The attempted abandonment of a vessel to the insurers after her stranding, which they refused to accept, whether sufficient in law to vest the ownership in them or not, could not operate to render them liable for the subsequent wages of the master, whom they did not employ. SAME. Libelant was employed by the owners of a schooner, which was afterward stranded. The insurers undertook the salving of the vessel, and the owners wrote libelant to co-operate with them in the work. They subsequently gave notice to the insurers of the abandonment of the vessel, which the insurers refused to accept. After she was salved and temporarily repaired libelant loaded a cargo and proceeded on the voyage, not having any notice of the attempted abandonment until he reached his port of destination. Held, that the former owners, by whom he was employed, were liable to libelant for his wages up to that time. In Admiralty. Suit in personam by master to recover wages. Nathan H. Frank, for defendant R. D. Hume. L. T. Hengstler and Charles W. Slack, for insurance companies. DE HAVEN, District Judge. This is a libel in personam. The libel alleges that between June 18, 1904, and January 16, 1905, the libelant rendered to the defendants, at their request, 5 months and 27 days service as master of the schooner Del Norte, at the agreed rate of compensation of $100 per month, and during that time also expended for and on account of the vessel the sum of $85.22, leaving a balance due to the libelant of the sum of $671.91. The defendants filed separate answers, each denying the allegations of the libel. It appears from the evidence that the defendant Hume was on April 14, 1904, a member of the firm of R. D. Hume & Co. This firm was at that time the owner of the schooner Del Norte, and then employed libelant as her master, agreeing to pay him $100 per month for his services. On the 11th of June following the Del Norte went ashore at the mouth of the Siuslaw river, on the coast of Oregon. The other defendants, insurance companies, were insurers of the vessel, and with the consent of the firm of R. D. Hume & Co. immediately undertook the work of salving her, and repairing the injuries which she had sustained as the result of her stranding. Shortly after the work of salving and repairing had commenced, the defendant Hume notified his codefendants, the insurance companies, 141 F.-31 that they could take the vessel and do what they pleased with her, and that she was abandoned to them. The insurance companies refused to accept the abandonment. The Del Norte was rescued from her perilous situation on the Siuslaw bar, underwent temporary repairs, and then the libelant, still retaining his position as her master, took on board a cargo of lumber for San Francisco, and arrived in that port October 15, 1904. Neither of the defendants would accept the freight earned on this trip; all of them disclaiming ownership of the vessel, and the defendant Hume asserting that she had been abandoned to the defendant insurance companies, and the insurance companies insisting upon their refusal to accept such abandonment. There was also evidence tending to show that after her arrival in San Francisco the vessel was sold to satisfy liens for permanent repairs made necessary by her stranding, and which defendant Hume claims should have been discharged by the other defendants. The libelant was not informed by Hume until October 15, 1904, that the firm of R. D. Hume & Co. had abandoned the Del Norte to the insurance companies. 1. The defendant Hume contends that he is not liable for the wages of libelant after the defendant insurance companies took possession of the Del Norte, for the purpose of salving her, that she was then abandoned to the insurance companies, and that they are responsible for the wages subsequently earned by the libelant as her master. In the view I take of the case, it is unnecessary to determine whether the owners of the Del Norte had the right to abandon her to the insurance companies or not, or whether the notice of abandonment was under the circumstances sufficient to vest in those companies the ownership, and make them liable as insurers as for a total loss of the vessel. It is undisputed that the defendant insurance companies have at all times denied the right of the owners to make such abandonment, and have refused to accept or to have anything to do with the vessel or her earnings; and it is not shown that they ever employed the libelant as master. It is clear upon this state of facts the libelant has no cause of action against the insurance companies. It is a familiar principle of law that: "Neither a liability ex contractu nor a liability quasi ex contractu can be imposed upon a person otherwise than by his act or consent. One man cannot force a benefit upon another without his knowledge or consent, and then compel him to pay for it." Clark on Contracts, p. 779. The only exception to this rule is found in that class of cases "in which the law creates a duty to perform that for which it implies a promise to pay, notwithstanding the party owing the duty absolutely refuses to enter into an obligation to perform it. The law promises in his stead and his behalf." Earle v. Coburn, 130 Mass. 596. But the libelant's case as against the insurance companies is not covered by this exception, but falls within the general rule "that no one can be permitted to force himself upon another as his creditor." Even if it should be conceded that the notice of abandonment was, in view of the circumstances under which it was given, sufficient to vest in them the constructive ownership of the Del Norte, the law did not impose upon the defendant insurance companies any duty to employ her in any manner, and the services ren dered by the libelant as her master were as to them officious and against their consent, because they at all times disclaimed any ownership of the Del Norte, or right to employ her or receive her earnings. 2. The case as to defendant Hume is different. The libelant was originally employed by the firm of R. D. Hume & Co., of which the defendant Hume was a member, and after the stranding of the steamer Hume, on June 22, 1904, wrote him as follows: "As a representative of the insurance companies is there and as you are the master of the vessel, you are agent for all concerned, so I depend on you to see that the operations are conducted with as much economy as is possible. At this distance, I am unable to judge of the conditions existing and must depend on your good judgment to bring back the vessel with as little expense incurred as is possible." The libelant might well have understood from this letter that he was to continue as master of the Del Norte under his original employment, and he was not otherwise informed by the firm of R. D. Hume & Co. until October 15, 1904, when he was first notified by them of their present contention that the services rendered by him subsequent to the stranding of the vessel were in fact rendered to the insurance companies as her owners. Upon consideration of all of the evidence, my conclusion is that the libelant is entitled to recover from the defendant Hume * for his services as master of the Del Norte from June 18, 1904, to October 15, 1904, at the rate of $100 per month. Let a decree be entered dismissing the libel as to the defendant insurance companies, with costs, and in favor of the libelant against the defendant Hume, for the sum of $390, with interest thereon from October 15, 1904, and costs. In re ALEX. (District Court, E. D. Pennsylvania. December 16, 1905.) No. 2,131. BANKRUPTCY-EXEMPTIONS-FRAUDULENT CONCEALMENT OF PROPERTY. Where a bankrupt within a short time before his bankruptcy bought goods largely in excess of the needs of his business on credit, and dis posed of them for cash, leaving the bills therefor unpaid, and when examined in the bankruptcy proceeding failed to account for a large portion of his receipts, gave testimony which he afterwards admitted to be untrue, and finally claimed to have gambled away a large amount, while his wife purchased his fixtures and continued the business in her name, he may reasonably be held to have concealed money and property with intent to defraud his creditors, and is not entitled to his exemption under the laws of Pennsylvania. In Bankruptcy. On report of referee.. The following is the report of Referee John G. Diefender fer in the matter of the exceptions to the allowance of the exemption to the bankrupt: Leo Alex was declared a bankrupt on the 14th day of January, 1905, upon a petition filed against him December 19, 1904. On the 19th of January, 1905, he filed his schedules, in triplicate, and in Schedule B5 claimed $300 worth of property out of his business, "from the fixtures, etc., in store at No. 643 Ham ilton street, Allentown, Pa."; and asked that goods of that value be set aside for him as his exemption. On the 10th day of February, 1905, the trustee of the bankrupt's estate made report of exempted property, and the report was on that day duly filed by the referee. On the same day R. J. Butz, Esq., attorney for creditors, filed exceptions to the allowance of the exemption. The report and the exceptions thereto were filed at an adjourned first meeting of the creditors of the bankrupt, after full examination of the bankrupt by the creditors. The examination of the bankrupt, at the first meeting of creditors and adjournments thereof, is the evidence by which the exceptions to the exemption are meant to be sustained. The first specification of the exceptions substantially comprises also the remaining two. It is "that the bankrupt has concealed money and property with intent to defraud his creditors." By agreement of counsel concerned the referee fixed October 26, 1905, for hearing of the exceptions. At that hearing counsel for the excepting creditors was heard. Counsel for the bankrupt did not argue the exceptions. The facts before the referee may be sketched in rapid outline: The bankrupt is of Greek nationality, of apparently middle age, and immigrant in this country since 1890. He came to Allentown in 1901, opened a candy store, and carried on the candy business until about the middle of December, 1904, when his property was seized in an execution for debt, and the petition in bankruptcy against him followed on the 19th of December, 1904. He had been in the same kind of business at Easton, Pa., for some seven years before he came to Allentown. He had some $3,000 in money when he came to Allentown and all debts paid. He rented the premises at 623 Hamilton street, spent considerable money to make them suitable for his business, and conducted the business there until he failed; and at the trustee's sale of the bankrupt's property his wife bought a considerable portion of the business fixtures, established herself in her husband's former place and business, using money, as she testifies, which she had saved out of her household expenses. The bankrupt's business seems to have prospered fairly until the last year. During the last two months he bought recklessly, on credit, from about 70 different tradespeople, scattered over a wide area of country, in a total of about $8,000, and tried to buy still more, but failed of further credit. He obtained the merchandise in the amount aforesaid, sold the same and got the money therefor, left the bills unpaid, and has failed to account for a full half of the money which he realized from the sale of the large stock of merchandise. He kept no books in his business. He had a bank deposit book and corresponding check books. He was urged to account for the receipts and made little attempt to do so. He swore first that he had deposited the money in bank and used it to pay his debts. The bank deposit book showed deposits in a total of $2,962.58 for the month of November, 1904, to December 10, 1904. The goods purchased from and after November 1, 1904, amounted to just about $7,500, as appears by the schedules filed by the bankrupt; and there was about the same value of goods in the store when the receiver in bankruptcy took the store as there was at the beginning of November, 1904, a month and a half before. The bankrupt admits that he received the goods and got the money for them when he sold them again, and must consequently have had about $7,500 in hand between November 1, 1904, to December 19, following. Of the money deposited in bank, his stubs of checks show $1,691.38. The bankrupt was given time between adjourned meetings to prepare to account for the balance of the money that must have been in his hands. He proved indifferent and failed, and when, under rigid cross-examination, his attention was called to the large deficit, after having sworn that he had applied all the money towards the payment of debts, he admitted that he had testified to what he knew was not true, and had gambled away some $2,300 or $2,500 in New York. Under substantially the above facts the question is whether the bankrupt is entitled to his exemption. "The rights of a bankrupt to property as exempt are those given him by the state law." Smalley v. Laugenour, 13 Am. Bankr. Rep. 692, 25 Sup. Ct. 216, 49 L. Ed. 400. "The only question to be determined upon a bankrupt's claim for exemption is whether he is entitled thereto as against general creditors." In re Brumbaugh, 12 Am. Bankr. Rep. 204, 128 Fed. 971. In the case in hand the creditors seek to bring the property claimed |