American Ry. Express Co. v. Rowe

ly аttachable either folk, where was seized ing jurisdiction as well without its jurisdiction, is likewise not well taken. The ed subject to the lien for taxes was lost because the vessel was removed from the county, and hence the maritime jurisdiction, and it plied taxes due. ty rules wealth and tion withheld the control, general doctrine which obtains under its within the court’s discretion to entertain an should 16th of February, before the cheeks were de nine ther the livered. merit. The decree of distribution filed on the and in accordance with the dignity of a excluded creditor that the checks should not be delivered for monwealth and municipalities.” in custodia would, their aid to take taxes and This fund taxes), tition ger vital, 3d assets of an insolvent make no order for the distribution of funds during the same payment of of such of the court to exercising their sentativе of the come into the courts of the state Code Va. (thereby preventing at the days. (9 Wall) 175, clerk’s officeon universal to be The contention of days thereafter, that it within such was not February, indeed, sold, and clearly receiver or corporation appellant’s Clearly, place control, court, before we properly placed levies due one of its In the Matter of legis property taxes is called on delivery rule current tax due the marshal of the court hav the same time timely denied be an discharge at which the its so right proceedings sovereignty charge of and administer the appellee, reopening therefore no until § in these 1925, specifically period term of the holding and that 19 L. Ed. 634. the 12th of where, 492b, attaching and in open court on the provide further opinion that, the state to enforce in this ease filed anomalous counties, of the fund under its in the ease was filed in levies due provision appellant a court, distributing levy at the to administer. foreign corporation for ship, the taxes out of the AMERICAN the tax circumstances, a lien of the upon the admiral is default decrees. admissibility, were instituted, vessel was payment for suggestion any deny equally here, Howard, February, only creditors rights or to the mon- for defendants in error. duty and provisions company. the'state, in such and the same the common city as the payment is made for result payment was a and invoke interpreta officer, under the city property provided the com- devolved proper Foss, of Newburyport, Mass., on the brief), without it was repre- power UF.(Sd) RY. cases, if ei- could ship, Nor from fund seiz high It is will аp pe U. of place It EXPRESS ror. Affirmed. plaintiff ment American tors of the estate of Elisha H. ed States for the District ‍‌​‌​​​‌​​‌‌​‌​​‌​​‌‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​‌​‌‍of Massachusetts; 1538), of of tion where United States otherwise which the vessel was libeled and and all criminal eases testator, and will be ey made jury 1538). of decision 65. conscious 1. Courts <©=>376—Evidence AMERICAN RY. EXPRESS Johnson, deceased’s held not of torney’s St § deceased held 233, 65; (G. (Circuit Court of Courts Courts Austin M. Action John H. plaintiff’s In Error to the District Affirmed. In action for The decree Rev. St. In action of arising such removal and Rev. St. U. S. might held admissible under testimony L. Mass. c. to [U. admissible under statutes § within 1538]). Rev. CO. v. in error. testimony him after another, attorney’s plaintiffs, deceased while in Railway Express Company. <©=>376—Evidence <S=>337. S. testimony Brewster, Judge. suffering have from the Casey, § affirmed, while Rev. St. U. decedent, Comp. under G. L. Mass. e. affect Pinkham, Bert Rowe August ROWE appealed as to tort conscious St. U. not over 100 No. Judge, dissenting. jurisdiction requiring injury. S. of Boston, admissibility St. § as to statements made and death Appeals, treaties, statements made courts, et al. with costs. 17, 1926.) taken held not § sale §St. 1939. § might hospital S. require, shall be rules from is defendant recover 6. L. 1538]). property (U. § suffering Boston, Court thereof, Rowe, deceased’s <©=>317(18) (U. hospital does not ‍‌​‌​​​‌​​‌‌​‌​​‌​​‌‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​‌​‌‍Rev. St. as to statements <©=>317(18) have been taken another, as to stаtements S. CO. First Circuit. Mass. Mass. c. (G. S. miles plainly under statute [U. after Comp. damages sold. laws, against Comp. Mass., brings L. and death from were lost the Unit- plaintiff’s S. after to affect ROWE (Ernest distant, Mass. o. U. deposi- —That execu- except Judg- Comp. injury right, —At- St. S. him one er- for in- 3y § § § REPORTER, FEDERAL 2d 14 SERIES 270 ing pied by the rection, N. wards the proceeding time, tion in injuries complained ranted had been recollection from the written statement which from all the evidencе the train he tate, ed, hospital, hospital was door ant’s until he was to a truek, home in New given. reason of collision with the truck sustained deceased. The deceased was visited fracture of one of came erwards statement 3 weeks later. gard answers attorney employed baggage negligence of 27,1923. ANDERSON, testator, alleged to recover station and H. The declaration contains two action of estate of response question, taking H.; that If Before The deceased was ANDERSON, Circuit defendant, truck lawyer car when the pain, No hospital Newburyport, and later to his a man 92 leading he out truck, knocked this evidence was Newburyport, Mass., living in appointed one which covered what how truck left 3 or of the station he prepared tort, finding: within or was some and the other for the а train for his home in right, questions knew Newburyport, damages for conscious was at the Boston Maine sta- BINGHAM, newspaper struck in permitted, struck Hampshire, short distance the accident witness saw brought by the years questions below days going nothing visited the deceased at the view men’s Rowe, testify, after introduced his defendant in the back train That the have platform, and and knocked before the arrival of his after the of; that at the time asked down, platform feet thighs. his feet of Judges. in a age, signed of the waiting stand over late years competent, of the arrived; jury the about its entering Mass., did not the truek strike the son, JOHNSON, long, took northeasterly and received on the afternoon plaintiff’s executors he in accident, by would be war- executors, by- caused He was taken refreshing attorney gave death of their who was aft & he died affirmed, of a railroad Seabrook, evidence, room the place. knew re objection the summer operating age, on down; the defend- counts; one observe the place turned to- feet This Seabrook, platform, approach we think suffering purpose answers October deceas and at smok- intes- wide, about occu- after is This that United and but the the the di- he an an N. а vide, trials where the E. 1538): lows : swer to the before not be inadmissible E. 880. missible the declarations made ure to exercise due care ;ed and gentlemen’s entrance, people standing oppo- Brooks trance, ant.” the ticket General men’s entrance posts being opy ed the site thereto and ladies’ entrances; beyond tongue had northeasterly his ed out into the men’s it; that the truck had been and ing people serve, some 4 feet from et swerving the the towards the Portsmouth or end of the press office, This We hold “The laws The Massachusetts The crucial “A right hand, station, past truck, proceeded weighed out as shall at its that entrance; office at the drawn deceased, though as he R. declaration were and which or handle the vestibules to the- Hall that the Eaws of section common and the finds office in personal were about 15 Holden, and station; Constitution, treaties, or commencement of the action station, evidence. Section he front that the evidence was going passed again regarded as rules of course from the that it with of the several having he Reinherz, platform near the portion passed midway that as question originated in section 34 of the accidеnt pounds, eases Massachusetts, an the station with gentlemen’s entrance; supported gave that the in or of a deceased end, having knowledge in evidence the and drawn southwesterly ladies’ the ticket oherwise express messenger, of the was made in statute is hold of the truck with he his Mass. no heed as to the he truek at distance he he out feet right some ‍‌​‌​​​‌​​‌‌​‌​​‌​​‌‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​‌​‌‍5 192 Mass. and at the time the deceased in аn- passed could, the left the courts of the anti-hearsay at no time observ- passed entrance, messenger, ticket there, Seabrook out from en- the shed or can- gentlemen’s building, they apply.” whether, require due to comer, pulling station extend- States, except of the declar- hand, steering platform express office, office particular. 65 is as fol- northeasterly feet e. 233,' 65, hold оf the had he look- from person the but decision in the good admissible hearsay office, or Boston extension were ad- the tick- his whether and or more did ob- gentle- gentle- the end of swerv- in his under 55 N. 77 N. faith rule. shall pro- near fail- who that was and and the if eral has been statute professional excluding Mr. Justice ing (page 525 courts of the United States make cept when thus direct conflict brook, quire U. S. 721, cept of decision in trials courts state ferent.” failure to supplied.) followed in which quiring held,” citing Potter v. Hundley, Ct. 522, 7 Ct. ally in taking Co. with the decision, to R. der the company, was §S. who 28 L. and not the Justice Black, 427, 17 Black, all civil A case admissibility “This has The In Whitford “When the Ex “It laws 119, proper Judiciary v. Union the admitted, Code. had been 163, 26 Ed. §S. — special provisions as or Ed. S. parte Fisk, 12 Pet. would result. New has been provision in Miller the courts exceptions to trials at changing the rules of the United States 28 535, provide, shall be the rules in the courts uniformly deposition the laws deposition provisions evidence of give his 720: exactly This was 1117, relied cases at common application of the rule. L. How. Harlan Fisk was laws York 306, 30 L. Ed. capacity, L. United States. contrary Trust 17 L. Act of although habeas named, Ed. in his states in which [7 committed 84, L. Ed. v. Clark common often decided or the S. 1, 12 L. Ed. 319. uniformly 113 U. Code, which authorized the deposition is held when 708, held Ed. testimony, 9 L. says, the 111; Co., point construed to in a manner inconsistent Ct. at common opinion says, referring evidence corpus to release the rule also ordered to the of the United 168; the witness upon of the United States New wrong, in which was doctor, 264; 308]): practice of National AMERICAN 112 U. S. observe, Vance Ed. S. citing R. S. law, Union, in the trial is Conn. M. L. County, 119 several sitting within that regarded (1 500, dеposition 713, Wright Bales, binding York Civil Code construed law, before trial un L. Ed. provision McNiel such courts In the with a under R. S. set Stat. prescribed they contempt for otherwise obtained treaties, and evidence, ex- in this they v. 5 S. Ct. competency Ed. it law cover state as Bank, free. But now R. S. states, Campbell, court was actu- 250, 5 illustrate the Fed v. as rules of Sims opinion are dif- v. Hol express the (Italics RY. EXPRESS CO. v. ROWE States, within 141\<24) as re U. S. Fisk, others.” rules 721: hеld in a say- 724, Ins. act 102 are re- R. S. It v. § ute federal ness shall be ed for the sions as to statute, depositions. that, unless which sitting tion with or statement Illinois statute statute sippi, he is a tried: Ed. law evidence ecutor executors, applicable tate, ward, laws of the state tency shall be the thereto refers against decision: Case was that the New ent Georgia, count of 26 courts of the competent without (page those testify against L. All that was But “In the courts In McNiel In Sims In Potter “The In would, if in state, admiralty.” 264, the headnote 319), a or of witnesses admissible Ed, 111, Congress.” 163): there is Wright in trials at opposite party, or by the court. Provided, incompetent. court the state them, courts. actions at party rules of color, making certain written instruments R. Mississippi; in commercial eases held admissible a state are in the federal federal dеpositions administrators, provision. page rules of decision as to the v. there v. National S. Taney, C. notary’s certificate of sitting The excluded in neither unless made the the rules Hundley, 6 How. R. S. to or interested or in generally force, repeal * rule as 165, Holbrook, really of the United States the other as to Bales, in which the court is evidence may express common law be conflict 721, (Page 725 statutory рrovisions general proof law in the courts ** any § called In in actions the court always party shall be allowed could not Section Taney, York 858, the statute of Missis- accurately states the Illinois, although J., held a statute decided all Bank, courts of of evidence court under civil action in the federal court contrary inconsist- required applicable, except any Black, 535, prescribed by evidence rule still or other rendered for or the states or statutory provi- followed [5 New York stat- testator, testify guardians, 102 Pet. action on ac- and in supersede the as well as 858 handwriting, (Harlan, S. in the issue any be applied in a respects 1, J., saying: or Ct. of the ex- U. sitting substitut- a federal 84, 88, prevails. provides transac- protest, because what is obtains against prevail no wit- compe- thereto United S. testify 729].) equity (12 intes- Fisk held 163, J.) L. L. REPORTER, 14 FEDERAL 2d SERIES rule more, ing J. et wise Pub. Co. Rowe’s Hand protest the rule as follows in the court below ties, 798, ‍‌​‌​​​‌​​‌‌​‌​​‌​​‌‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​‌​‌‍209 F. the statute cation of a staté statute to the certificate of federal court Gray. C. C. A. common law States,’ ‘except law of evidence of the state state.” cases. Congress the former the federal court impeaching out witness opinion L. Ed. chusetts can trial. interest. C. C. A. trial statute bound to 372, seq., Compare In Nelson v. First National “And the rules of evidence the Court “Ordinarily the rules of evidence and the common Vance v. the courts of The federal Circuit-Court “The Ag. In our his require [130 (page 518) or R. S. § Ev. court) does not sustained an and G. & C. there notes and cases. 993, Union, See Massachusetts Compare removing disqualifications of a statutes of the United C. attention Chem. Co. v. was rule, allowing and earlier 428: (C. A.) 52, statutory C. C. A. aрply §§ he introduced for the notes; Logan opinion, C. A. of a is to the same effect. In Ameri S. Ct. or he ‘rules of decision in testimony, his 2 Foster’s Fed. Prac. is an had refused to Campbell, Black, 427, promissory this court held that the Massa 721, sitting bring ease was provide.’ where the and his them rules of decision.” Brown, subsequent testimony are respect 425, the courts Id. having v. United Appeals. Compare Wig- does not sitting 617, 56]): might perhaps Merriam Cо. v. instructive review of the exception enactments of the States the'authorities 207 F. the ease within the entirely right within the limits of the p. obligatory dealing Hogan, statute. The cases Judge former 36 L. will be followed opinion Compare, also, ” sent et J., who to evidence in cases similar note, page 801, first been called to are not inclined to narrow the lines.” declared seq.; this Ed. back for a with the 213 F. Sanborn stаtes to the (which prevail testimony prescribed by States other- Bank, Mr. Justice the United state. The 237, 243, 244, purpose says to criminal have been because of- Syndicate show that (4th Ed.) 144 U. C. J. 216 fact that the Ohio ble before the Gwynne, trials at adopted 416, 130 hearsay was the et apply Judge in the act judges appli (page 69 F. prin- 25 C. with be trea- seq., of a of new by of admissibility bring was not made admissible where the but vide, trials 1538), is as follows: which proof by deposition of the United States George Rowe, though trial. testimony. en before a trial, the witness before the court at section: court, at some other 1468), of the United cept examination of does not mean 728 (28 L. of common firmed, 31 N. the court said: Section Commonwealth v. consistent with eral a manner not, ciples deposition being taken. The executors were [Comp. “The lаws of the several Revised The ex admitted decisions “This In Ex “The mode JOHNSON, In Cf. Mattox v. United “In these belongs exclusively as -hereinafter shall therefore, offering statutes, suit to E. at common all They Fourth Nat. Bank v. laid those with costs to the defendants in error. attorney Massachusetts statute is in no 861, cases. 961, relate to obviously parte other than that his parte St. § Constitution, treaties, law shall he judge Ed. down recover Statutes, would or regarded Revised Statutes 24 L. R. A. 235. depositions may days, in the Eisk Case held oral in cases where Act of March proof by reading S. Ct. a failure of 1117), In witnesses Fisk, any 1476]), changed hearsay, affidavit which the Circuit who had been legislation proof depositions, Trefethen, S. Ct. examination not, provided.” fact, cannot within the when the whole means the otherwise damages the Eisk Case and other States is as federal .statute. time than the court said of this to the court,’ answer to District Judge he died where rule Of provided 50, U. S. the trial of oral he such States, evidence justice is to Albaugh, 9,1892 (27 for his to this they open require 36 L. Ed. 917. or 157 Mass. have been exceptions.” also show that states, except production courts of the 47 L. Ed. (Comp. hearsay 713, ease, then; (dissenting). even in follows: the time engaged decisions depositions, Court the law. or during without enlarge apply.” deceased, occur, we injuries, tendency by.hav- taken in applica- section, the fed- way actions 188 U. S. Ct. §St. U. S. open rule, ‍‌​‌​​​‌​​‌‌​‌​​‌​​‌‌‌​​​‌‌​‌‌​​​‌‌‌​‌​​​​‌‌​​‌​‌‍pro- Stat. tak- oral 180, ex- af- in- it ing mony of there District Court fore the brief), tion amination around hearing ing insolvency alleged od not trustee gage given gagee had operate er showing gage United States for Acts solvency at such time. cree ly, trustee, cis ful and peals. Affirmed. at Baltimore, Bankruptcy; per, cuit Howard Southern appellee. 1. (Circuit Bankruptcy <@=>303(2). Bankruptcy Bankruptcy <@=3303(3). execution I do not think the statute MANLY Evidence held P. In the matter of J. Purdon as Appeal from the District Court of Under Bankrupt’s Before WADDILL and John invalid Judges, testify dismissing sustaining Feb. Burgess. security preferential mortgage attorney preference as on trustee’s answers which bankrupt’s a voidable jury, and that the Embert, Bаnkruptcy Act, 60, 5,1903, 13, error in the admission reasonable cause Court of Supply Company bankruptcy and who was allowed such indirection. preference as a appellant. to have a as to the Paterson, bankrupt Wright, In re BURGESS. <@=3303(1). should be financial statement SOUTHERN SUPPLY June for preference. alleged preferential the petition, "who Petition COCHRAN, to sustain No. 2484. bankrupt the District Maryland, as solvency, Appеals, Fourth Circuit. validity existing preference. petition Baltimore, Md., has burden questions which conducted (Comp. St. § bearing mortgage within four-month were obtained. 1926.) bankruptcy reversed. Baltimore, Md., June Baltimore, MANLY v. conducted to believe it would finding judgment of the I therefore held admissible indebtedness was security on account of the amount then due PARKER, to declare mort- declared unlaw- the trustee District and that mort- Morris A. So- time as given to the From a de- of establish- can be amended place it question mortgage, mortgage, examina- W. Man- the testi- of Fran- Md. CO. he SOUTHERN Judge. petition giving mort- think peri- Cir- and within put aft- ap- S'. (24) got (T. be- 11. «bankruptcy. court’s action in cure involuntary ruptcy, wit, ified. bankrupt; atively narrow bankruptcy, rupt’s missing petition the court sustained mortgage was bankrupt tate in the then due lien holding the bankrupt, ror sum of same. it from the District Court gust 31, 1924, and in gage, tion, termed appeal from a unlawful orally en sailing swered this ern this ease was taken. The quently, $12,407.51. same On the 7th of On the 17th participate Prior four months of WADDIUL, On evidence a light present but three more District same. Supply Company upon thereon) SUPPLY CO. voidable adjudicated viz. denied that creditors under the and dismissed the before the these There thereafter was “balance $9,006.86, part the said сase to the by Burgess undisputed previous indebtedness, bankrupt executed important preference, in all First, Francis P. bankruptcy, city and, four months From bankrupt, wit, bankruptcy was filed mortgage valid; second, In dis- the 19th petition, Court, pleadings petition is reduced to within a was no preference against The on the 17th November, 1924, petition undoubtedly executed filing legal principle governing the compass, decree of Baltimore certain financial bankruptcy proceeding, secure to that third, respects permitting sheet,” bearing May, 1925, Whether the appellant herein, mortgage judge, preferred appellee promptly an- mortgage mortgage facts in such, dispute on the 13th duly and insisted considering District of The deeree the of the United States validity Burgess, filing when considered insolvent, valid of an indebtеdness January, bankrupt law, assignments of er- petition allowing case was tried supply company. propriety chosen and to be as and his trustee certain real es- creditor of July, a total (being for considera- constituted to the South- company an of the mort- filing date against the petition case. introduced result Maryland. This is trustee statement, appeal the same. and with-' unlawful many 1925, he assailing assailing given filed compar appellee erred a third sum of the to se subse- bank- bank- May, qual- 27S giv- Au- as- an as (2d) 14 F. —18

Case Details

Case Name: American Ry. Express Co. v. Rowe

Court Name: Court of Appeals for the First Circuit

Date Published: Aug 17, 1926

Citation: 14 F.2d 269

Docket Number: 1939

Court Abbreviation: 1st Cir.