Bottom Line: In this study, we examine and contrast the magnitude and phenotype of the T cell immune response against gB, gH, and gL within healthy donors. gB-specific CD4(+) T cells were found in 95% of donors, and 29 epitopes were defined with gB-specific response sizes ranging from 0.02 to 2.88% of the CD4(+) T cell pool.Glycoproteins were effectively presented following delivery to APCs but only gB-derived epitopes were presented following endogenous synthesis. gB expression was observed exclusively within vesicular structures colocalizing with HLA-DM whereas gH was distributed evenly throughout the cytoplasm.These results reveal that gB is a uniquely immunogenic CMV glycoprotein and this is likely to reflect its unique pattern of endogenous Ag presentation.
fig01: Identification of peptide-specific T cells by intracellular cytokine staining for IFN-γ. (A) Schematic representation of the three CMV-derived glycoproteins studied. The identification of a CD4-restricted gB-derived epitope is shown as an example in (B). PBMCs were stimulated overnight, then stained with Live/Dead fixable violet stain and anti-CD19 (dump channel) as well as anti-CD4 and anti-CD8. After fixation (4% paraformaldehyde) and permeabilization with 0.5% saponin, activated T cells were identified by staining with anti–IFN-γ. DMSO and staphylococcal enterotoxin B (SEB)–stimulated cells served as negative or positive controls, respectively. Shown are the gating strategy (top row) and results of the first round of screening (middle row). The individual peptide epitope was then identified in a subsequent screening (bottom row). Numbers indicate the frequency of IFN-γ–producing cells within the total CD4+ T cell population. FSC-A, forward scatter area; FSC-H, forward scatter height; SSC-A, side scatter area.
Mentions: Following overnight stimulation, activated T cells were identified by flow cytometric detection of intracellular IFN-γ expression. For this, cells were washed with 1× PBS and stained with Live/Dead fixable violet stain (Invitrogen) for 15 min at room temperature (RT) followed by one wash in 1× PBS and one in staining buffer (1× PBS plus 0.5% BSA and 2 mM EDTA). T cells were then identified by staining with anti–CD4-PE (BD Biosciences) and anti–CD8-PECy5 (Beckman Coulter), and B cells were excluded by staining with anti-CD19 Pacific Blue (eBioscience; dump channel). Cells were incubated for 15 min at 4°C before washing off excess Ab with staining buffer. Fixing was carried out with 4% paraformaldehyde (in PBS; Sigma-Aldrich) for 15 min at RT before permeabilizing with 0.5% saponin (in PBS; Sigma-Aldrich) for 5 min. Intracellular IFN-γ was then stained with an anti–IFN-γ FITC Ab (BD Biosciences) followed by a final wash in staining buffer. Acquisition was carried out on an LSR II flow cytometer and FACSDiva software (BD Biosciences) collecting 300,000 live lymphocytes, and data were analyzed using FlowJo software version 7.6.5 (Tree Star). For the analysis, doublets were excluded based on forward scatter height versus forward scatter area, followed by exclusion of dead cells and CD19+ cells. The lymphocyte population was then gated on a forward scatter area versus side scatter area scatter plot (see Fig. 1B), and the proportion of IFN-γ–producing cells was determined within the CD4 or CD8 T cell subset. A cytokine response was defined as positive when the frequency of cytokine-producing cells was at least 2-fold increased above background frequency detected in the corresponding DMSO-stimulated sample.
The libelant, under the circumstances, had no duty to take care of the oranges. As to him they stood as if they were still in the not discharged. They were wholly in the custody and at the risk of the vessel. The libelant is entitled to recover the invoice cost, with interest, according to the findings, and his costs in the district court. The claimant is allowed its costs in this court.
A vessel lying at anchor and afloat between Jersey Cit, and Manhattan Island, on the Hudson river, on the westerly side of the mIddle of said river, is within the territorial limits of the state of New Jersey, and hence within the admiralty jurisdiction of the United States district court for New Jersey.
NIXON, J. This case comes before the court on a question of jurisdiction. A number of libels for seamen's wages having been filed against the brig Sarah E. Kennedy, a monition was issued and placed in the hands of the marahal, who boarded the vessel while she was lying at anchor and afloat on the Hudson river, between Jersey City and Manhattan island, several hundred feet east of the Morris-street pier of Jersey City, and on the westerly side of the middle of said river. The respondents claim that the place of said seizure was outside of the admirality jurisdiction of this court, a.nd that the libels should be dismissed for want of jurisdiction. Since the adoption of the federal constitution it seems to have been the policy of congress to make the jurisdiction of the district courts of the United States co-extensive with the limits and boundaries of the states. Thus, the second section of the judiciary act of 1789 constituted the state of New Jersey one federal district, and the state of New York another. And although the latter state, in consequence of its extent and large growth in population, has since been subdivided into three districts,-the northern, southern, and eastern,-the jurisdiction of each is expressly limited to designated counties of that state, and the waters thereof. See sections 531, 541, 542, Rev. St. U. S. No authority is found in any act of congress for the courts
of the district in one state to exercise jurisdiction over the territory of another. Before the revolution, and running far back into the colonial times, there had been a dispute between New York and New Jersey as to the true boundary line of the respective states. The territory of both states was originally embraced within the patent or grant of March 12, It',64, from Charles II. to his brother, the Duke of York. On the twenty-fourth of June, following, the latter conveyed to Lord Berkley and Sir George Carteret the land which now constitutes the state of New Jersey, being described in said conveyance as "all that tract of land adjacent to New England, and lying and being to t!Ie westward of Long island and Manhattan island, and bounded on the east, part by the main sea, and part by.Hudson's river; and hath upon the west, Delaware bay or river, and extendeth southward to the main ocean as far as Cape May, at the mouth of Delaware bay; and to the northward as far as the northermost branch of the said bay or river of Delaware, which is in 4:1 deg. 40 min. of latitude, and crosseth over thence in a straight line to Hudson's river, in 41 deg. of latitude." From that time onward, the people of the state of New Jersey have claimed that it was entitled to the exclusive jurisdiction and property of and over the waters of Hudson river and the bay of "New York, to the middle of the river and to the channel of the bay, from 41 deg. north latitude to the said bay. The people of New York, on the other hand, asserted the right of the state to jurisdiction and property over the said river and bay, to the low-water mark on the western shore. It is n:ot necessary here to express an opinion which was the better claim, inasmuch as commissioners appointed by the respective states to determine and settle the proper boundary line came to an agreement or compact on the sixteenth of September, 1833, which was confirmed by the legislature of the two states, and was assented to by the congress of the United States by an act approved June 28, 1834. 4 U. S. St. 708. That agreement, in its first article, fixed the boundary line between the two states "from a point in the middle of Hudson river, opposite the point on the western shore, in the 41 deg. of north latitude, to the main sea, at the middle of the river, of the bay of New York, of the waters between Staten island and New Jersey, and of Raritan ba,y to the main sea." The territory of the state of New Jersey has always constituted this judicial district. Where a dispute exists between neighboring states respecting the true boundary line, it would seem a reasonable conclusion that when such line is fixed by commissioners of the states, with the assent of congress, the jurisdiction of the national courts should follow and extend to the limits of the boundary thus agreed to and established. Whatever may be the arrangements between the states as to police regulations and quarantine laws, they cannot be construed into a surrender of the admiralty jurisdiction of the courts of the
United States throughout the state. It was probably, in part at least, to prevent any such construction of the compact, that the congress, in it!:! act assenting to the same, another section to said act of ratification. providing that nothing therein contained should be construed to impair, or in any manner affect, any right of jurisdiction of the United States in and over the islands or waters which formed the subject of the agreement. 'rhe principles which are to govern in the decision of this case are very clearly indicated by the supreme court in In re Devoe Mamif'g Co., 108 U. S. 401; S. C. 2 Sup. Ct. Rep. 894. It arose upon an application for a writ of prohibition to this court restraining it from exercising jurisdiction under the following circumstances: In the month of April, 1882, a libel in personmn was filed in this court against the Devoe Manufacturing Company, a New York corporation, to recover damages arising from a collision. The corporation not being found within the district, a monition was issued out of the court in October following, commanding the marshal to cite the respondent if it could be found, and if not, then to attach its goods and chattels in the district. The officer seized a tug-boat belonging to the corporation, and made return that he had attached the vessel as the property of the respondent. It appeared in the case that the tug when seized was afloat in the Kill von Kull, between Staten island and New Jersey, fastened at the end of a dock at Bayonne, about 300 feet below low-water mark, and about half a mile from the entrance of the Kill into the bay of New York. A motion was made here to set aside the service of the process; the respondent claiming that the boat, when seized, was not within the district of New Jersey, but was within the exclusive jurisdiction of the Eastern district of New York. This court denied the motion, holding that the tug, when taken by the marshal,-being fastened to a dock on the New Jersey shore,-was within the New Jersey district, although far below the low-waterline of the river. See Hall v. Devoe ManuJ'g Co., 14 Fed. Rep. 183. The application was then made to the supreme court to issue a writ of prohibition to this court restraining it from exercising the jurisdic'"tion thus claimed. The conrt was unanimous in refusing the writ. Mr. Justice BLATCHFORD filed an able opinion carefully reviewing the former grounds of controversy between the states of New Jersey and New York, and, among other things, stated that "we are all of the opinion that when the act of congress of 1789 declared that the New Jersey district should consist of the state of New Jersey, it in tended that any territory, land or water, which should at any time, with the express assent of congress, form part of that state, should form part of the district of New Jersey." It was thus announced for the first time, by the highest judicial authority, that the limits of the jurisdiction of the federal'courts in the several states varied from time to time as the boundaries were changed with the assent of the congress of the United
It appearing that the brig was seized on waters west of the middle of the Hudson river, she was lying within the territorial limits of the state of New Jersey, and hence ;within the admiralty jurisdiction of this court. The motion to dismiss must therefore be refused.
10. § 4233. On the evidence, held, that the schooner F., which, while lying at anchor in the harbor of New Haven, was run down at night by the steamer C., was solely in fault for the collision in having no anchor light properly burning. 2. ANCHOR W ATCH-USAGE-MARITIME DuTY. If vessels anchor in places where other vessels are not reasonably to be expected to pass, it is not the usage, and, as it seems, is not a maritime duty, to maintain an anchor watch. 3. SAME-PROXIMITY TO PASSING VESSELS-FLASH-LIGHT-REV. ST. § 4234. But near a narrow channel-way, where steamers are accustomed to pass, whenever the weather is thick and lights likely to be obscured, it seems that the neglect to maintain an anchor watch and to exhibit a torch-light to ap· steamers should be deemed a neglect of ordinary prudence as well as of the llltention of section of the Revised Statutes.
In Admiralty. Wilcox, Adams ct Macklin, for libelants. Goodrich, Deady ct Platt, for claimants. BROWN, J. The libelants' schooner Foam, while at anchor in the harbor of New Haven, at about half past 10 P.M., on June 25,1884, was run into by the steam-propeller Erastus Corning, in coming out of the harbor, bound for New York. The place of the collision, as I find from the weight of evidence, was a little less than one.half of a nautical mile below the Long Dock light, and from one-half to twothirds of the distance between that light and the Black buoy, and probably from 100 to 200 feet west of a line joining those points, in about nine feet of water at low tide. The buoy is near the western edge of the dug-out channel. The night was dark, and somewhat thick with rain or mist, but without fog. Various points are raised in the defense; but the only one I find it necessary to consider is the allegation that the schooner displayed no light. The channel from the Sound up to New Haven light consists of a dug.out portion about t>DO feet wide, alid, upon the westerly side, a further margin of natural channel, having from seven to twelve feet of water, very irregular and variable both in breadth and depth. The
Where the same man owns several banks, each having a separate account with still another bank, a check drawn by one of his banks upon the outside bank will not operate as assignment of any portion of the accounts of hi. other banks.
As between a bank holding a note which is dUll and the payee of a check, drawn by the maker of the note, the equities are in favor of the bank.
Where a bank holds a depositor's note, it has a right, at any time during the day on which it falls due, to apply funds in its hands belonging to the maker to the payment of the note, even where nothing will be left to the maker's credit to apply on checks. Where a trust fund can be traced, equity will follow it.
In Equity. Dyer, Lee ct Ellis, for complainant. Boyle, Adams ct McKeighan, for defendants. BREWER, J., (orally.) In the case of Schuler against the Laclede Bank, which was submitted upon bill, answer, and agreed statement of facts, the suit is brought by the plaintiff as the payee of a check drawn by Israel & Co. on the defendant the Laclede Bank. 'fhe 26th. Israel & check, drawn October 20th, was presented Co. failed, and made an assignment on October 24th, of which notice had been received by the Laclede Bank, who declined paying. The first question is whether an action at law or a suit in equity can be maintained by the payee of such a check against the drawee, under any circumstances, and, if so, under what. That no action at law can be maintained in the lederal courts is clear. In the case of Bank v. Millard, It} Wall. 152, the supreme court held that "the holder of a bank-check cannot sue the bank for refusing payment, in the absence of proof that it was accepted by the bank, or charged against the drawer." The same doctrine was aifirmed in a later case of Bank v. Whitman, 94 U. S. 343. "The payee of a check, before it is accepted by the drawee, cannot maintain an action upon it against the holder, as there is no privity of contract between them." In the case of Ohri.stmas v. Russell, 14 Wall. 69, in reference to what constitutes this matter as to whether there is an equitable assignment, the court say:
'''rhe assignor must not retain any control over the fund, any authority to collect. or any power of revocation. If he do, it is fatal to the claim of the assignee. The transfer must be of such a character that the fund-holder can safely pay. and is compellable to do so, though forbidden by the assignor. Where the transfer is of the character described, the fund-holder is bound from the time of notice. A bill of exchange or check is not an equitable as-' signment pro tanto of the funds of the drawer in the hands of the drawee."
In 2 Daniel. Neg. Inst. § 1638, the author, who criticises this doctrine of the supreme court, states that "it is universally understood between banks of deposit, arising from the customs of trade, that the check
of the bolder is to be paid upon presentation. The United States supreme court 80 declares in a recent opinion, though, as yet, it has not followed that declaration to its logical sequence;" citing Gentral Bank v. Life Ins. Go., [104 U. S. 54,] decided in 1881. That logical sequence, as he contends, would be that such a check operates as an equitable assignment, and that a suit in equity can be maintained thereon. These are the chief rulings and expressions of opinion on the pad of the supreme court in this respect. I think it is clear from them that no action at law, and no suit in equity, can be maintained upon the mere possession of such a check; that there must be, besides the possession of the check, some other circumstances which either create a contract between the payee and the bank or which equitably requi{e that the funds in the possession of the bank should be appropriated to the payment of the particular check. Over against these decisions of the supreme court I find .these in this circuit: One .in the case of Wtllker v. Seigel, reported in 2 Cent. Law J. 508, in which my Brother TREAT states the rule thus: "An order drawn on a general or particular funcl for a part only does not amount to an assignment of that part, or give a l.en as against the drawee, unless he accepts. That rule, as thus broadly stated, seems to apply only to cases at law. Such.an order, so soon as notice is given to the drawee, works an assignment in equity." In German Sav. Inst. v. Ad(M, 1 McCrary, 501, S. C. 8 Fed. Rep. 106, after the insolvency of, and a general assignment by, the drawer, the bank came into this court by a bill of interpleader and tendered the money, brought in the payee and the assignee of the drawer, and asked the court to dispose of the fund ;.and the court, holding possession of the fund, as between the drawer of the check and the payee declared that the payee was entitled to it, and so gave judgment. In a still later case of First Nat. Blink v. Coates, reported in 8 Fed. Rep. 540, the Mastin Bank had drawn on the Metropolitan Bank of New York several checks. On presentation, the Metropolitan Bank refused to pay, having previously received notice of an assignment by lhe Mastin Bank, and turned the money over to the assignee, Coates. These various check-holders then brought a suit in equity against the assignee having possession of this money, claiming that, as between themselves and the assignee who represented the drawer, they had an equity upon it superior to the general creditors of the Mastin Bank; and Justice MILLER, the presiding justice of this circuit, held that they had, and in the course of the opinion he says: "The question here is whethp,r this is an appropriation in equity of that , much of that fund in favor of the payee. It is said it is not, because the payee or holiler of the check cannot bring suit against the bank for money, and it is not an equitable assignment of that much money. But that argnment is founded on a misconception or want of proper conception of the doctrine of equitable assignments. The very words' equitable assignment' are used because the assignment is only recognized in a court of equity, and
not a court of law. If it were recognized in a court of law, It could be enforced there, and we would never have heard of any such words as 'equitable assignment.' Therefore it is an assignment of that much of the debt, which a court of equity will recognize and's court of law will not."
"The philosophy of it is that this fund, having been appropriated by these checks duly presented, did not pass by the assignment; that the fund on which they were drawn, to that extent, did not pass by the assignment as the general property of the bank into the hands of Coates, but when he got it he held it subject to the lien established on it. The result of that is that these drafts are each of them an appropriation of that much of the fund, and the complainants are entitled to recover the amount."
That justifies me in the conclusion which I have jnst expressed, that no suit in equity ever can be maintained upon the mere possession and production of the check by the payee; 'that there must be some equitable circnmstances to justify the conrt in seizing that fund and giving it to the payee. One of those equitable circumstances is the insolvency of the drawer; because, when the drawer becomes insolvent, the question is whether that money shall be paid over to the payee to whom the drawer has directly appropriated it or distributed generally among his creditors, and it would seem to be equitable that the party in favor of whom the appropriation has been made should be preferred to those creditors who are merely general creditors, and in whose favor no such appropriation has been made. That rule applies in this case. So, also, I think there is some room for the application of the principle that where a fund can be traced equity will follow it. I do not mean to say that there is the fullest room for the application of that principle. The facts are that the cashier of Israel & Co., the drawer of this check, held a note belonging to the plaintiff for collection. He received in part payment thereof a check for $12,500, drawn upon a bank at Fort Worth. He received this as the agent of the plaintiff, the owner of the note. He sent that check to the bank at Fort Worth, with directions to deposit the same to the account of Israel & Co., and then, within a day or two, directed $7,000 of that money to be transferred to the Laclede Bank, which was done, and in a roundabout way some more was also transferred to the Laclede Bank; so that, practically, the money collected on that note went to the Laclede Bank, and made the fund there to the credit of Israel & Co. at the time this check was presented. I think for both these reasons the payee of the check is entitled to maintain this suit. A further question then arises upon theae facts: Israel & Co., on the morning of October 24th, had on deposit in the Laclede Bank twelve thousand and odd dollars. On that day they assigned. Three months before they had discounted with the Laclede Bank a note of $6,500, which, by its terms, would become due on October 26th. Prior to the 24th they forwarded to the Laclede Bank a new note for $6,500, dated October 24th, as a renewal of the former note. The
Laclede Bank, on October 24th, the day this new note was received, charged up the old note to the account of Israel & Co., but did not discount the new note,-at least, they did not enter it on the books, and had not formally resolved to discount it. So it stood on the morning of the 26th. On that morning, prior to opening of the bank, they received telegraphic notice of the assignment, and of course declined to discount the new note. At a quarter past 10 this check was presented. Now, the bank insists that this note was due on the 26th; that, having funds in its possession, it was at liberty to charge up that note as against those funds; and that, therefore, prior to the presentation of this check, Israel & Co.'s account was reduced to that extent. On the other hand, it is claimed tliat the note WitS not payable until the close of the day of October 26th, and therefore that this check was presented before the note was payable. This question must be solved in a court of equity, upon equitable grounds, and I think that it is equitable for a bank, upon the day on which a note becomes due, and at any time during the day, having funds of the maker in its possession, to apply those funds to the payment of that note, although by so doing it leaves nothing standing to the credit of the maker to apply on cbecks drawn by him. As between the bank, the holder of a note due, and the payee of a check upon that bank, the equities are in favor of the bank. Or, at least, if the equities are equal, legal title to the funds and possession is with the bank, and it should not be postponed. rrhis only brings me to another question. J. M. Israel was the sale owner of the Bank of C. W. Israel & Co. He was also sole of the Exchange Bank of Harold, located in another city, and of the Exchange Bank of Wichitaw Falls, located in still another place. Each of these three banks owned by J. M. Israel, doing business under a separate name, had a separate account with the Laclede Bank. Does the drawing of this checkby the Bank of Co W. Israel & Co. operate in any way as an equitable assignment to the payee of the check of any portion of the accounts of these other banks, upon the simple ground that the same man is proprietor of all three? I think not. The equitable assignment created by the drawing of a check does not give rise to anything in the nature of a garnishment upon the bank. Supposing the Laclede Bank, having this account with Israel & Co., had also in its possession a stock of merchandise belonging to Israel & Co., could it for a moment be claimed that the drawing and presentment of this check would have operated to give a lien upon the stock of goods, or to charge it in any way as a garnishee? It seems to me all that can be claimed in respect to such a check is that it operates as an equitable assignment of the fund on which it is drawn, and to the extent only that the fund remains in the possession of the drawee at the time it is presented. In that view of the case, it is unnecessary to inquire as to the state of the account of these other banks, or what would be the claim
of the assignee as against the Laclede Bank. The account of Israel & Co. was $12,412.41, less the $6,500,-the note charged up on the 24th,-leaving a balance of $5,912.41 subject to the check at the time it was presented, and for that amount, with legal interest from the date of demand. the plaintiff may take decree.
NOTE·· It is p"jd by the supreme court of Illinois, in the case of National Bank of America v. Indiana Banking Co., 2 N. E. Hep. 401, that a check drawn on a bank operates as an assignment of the funds of the drawer to the amount for which the check is drawn. . Notwithstanding the agreement which bankers make with their customers to pay their checks to the amount, standing to their credit, a checkholder can take no benefit from this agreement, and a check does not operate as a transfer or. assignment of any part of the debt, or create a lien at law or in equity upon the deposit. JEtna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82. There is no privity of contract between the holder of a check and the banl} on which it is urawn, and arefusal to pay the check would not give the holder a right of action against the bank. Case v. Henderson, 23 La. Ann. 49. Where a depositor draws his check on his banker, who has funds to an equal or greater sum than his check, it operates to transfer the SUIll named to the payee, who may sne for and recover the amount frolll the bank, and a trans,er of the check carries with it the title to the amount named in the check to each successive holder. Union Nat. Bank v. Oceana Co. Bank, 80 Ill. 212. A check in the ordinary form does not operate as an assignment of so much of the drawer's funds in the drawee's hands. Attorney General v. Continental Life Ins. Co., 71 N. Y. 325. No action can be maintained, on an check, against the drawee. National Bank of Rockville v. Second Nat. Bank of Lafayette, 69 Ind. 479. No aeti()n lies, in favor of the transferee of an accepted check, against the bank on which it is drawn. Colorado Nat. Bank of Denver v. Boettcher, 5 Colo. 185.
Where a suit had abated, after demurrer overruled and answer filed, by the death of the plaintiff, and subsequently there was granted a motion by defendant to dismiss for want of prosecution. !teld, that the attorney's docket fee of $20 was taxable under a decree awarding the defendant his costs.
HAMMOND, J. I do not feel called upon here to reverse, as I am asked to do, the opinion in Goodyear v. Sawye'r, 17 Fed. Rep. 2. That case called attention to the conflict of authority on the point whether, upon the voluntary dismissal of a suit in equity after answer filed, etc.· the solicitor's docket fee be taxable under Rev. St. §§ 824. 823, and 983. It sought to find some principle of interpretation for statutory language which is somewhat obscure in itself.
susceptible perhaps of significations, and as to which it is altogether probable that the persons who framed and passed the statute had no precise conception of its exact meaning. Following the ordinary course that couds take out of such difficulties, I endeavored to to apply, as best I could, to the interpretation of a statute costs of suits in equity the meaning of the terms "on final hearing," as understood in that particular. branch of the law at the timE! of the passage of the statute and anterior thereto. The truth is, it is a. rather loose expression familiar to equity lawyers of that day, and used to designate that final dispositiun of a case which ended it, and ordinarily resulted in a decree for costs. It might come after issue; it might come before,-whatever disposed of the case was the "fina,l hearing." It was used in contradistinction to all that which preceded sense, interlocuthis final result, and which was deemed, in a tory. It might be that proceeding which was known in a strictly tech· nical sense as "the hearing,"-not the final hearing,-or it might not, according to circumstances. The technical practice of the English court of chancery had been greatly modified by statute, more by custom; and all its terminology was loosely applied. These words "final came into use to distinguish from "the hearing" that last expiring proceeding which generally disposed of the costs. I wish to quote here briefly from chapter 27 of the first edition of Daniell's Chaucery Practice, and refer, without quotation, to the opening paragraphs of the preceding chapter; the one being the opening chapter of volume 3 of the original work, and the other the final chapter of volume 2. And, before making the quotation, I refer to Mr. Justice BRADI,EY'S note to Thomson v. Wooster, 114 U. S. 112, S. C. 5 Sup. Ct. Rep. 792, to my own note to U. S. v. Anon., 21 Fed. Rep. 766, and to the learned Chancellor COOPER'S note to the corresponding chapter of Daniell, in the fifth American edition, volume 2, p. 1376. These notes will explain the importance of the following quotation, and generally emphasize the necessity, in our federal practice, of caution in these matters not to be misled by implications based on mere words, overlooking the constant changes that legal terminology undergoes in the peculiarities of our American systems. Mr. Daniell says:
"As it is the usual practice of the court, where, upon the hearing, it directs either an issue or a case or a reference to a master, not to give any diredions upon the subject of costs till after the verdict or certificate of the judges has come in, or till the master has made his report, (a practice which appears to have been adopted for the purpose of accelerating the final termination of the suit,) it generally happens that the costs of the suit are taken into consideration at the time when the cause comes on for hearing for f1J,Tther di'rections, and that on such occasions, as soon as the further directions are disposed of, the conrt makes such order with regard to the costs as it thinks the justice of the case requires," etc.
This was the "final hearing," and the books of practice give abundant evidence that there was good cause for falling into the habit of
using this phrase to express and distinguish a possible and often occurring pl'oceeding which came after "the hearing;" that is to sa.y, after "that submission of it to the court in such shape as the parties choose to give it, with a view to a determinattion whether the plaintiff or the libelant has made out the case stated by him in his bill or libel as the ground for the permanent relief which his pleading seeks, on such proofs as the parties place before the court, be the case one of pro confesso, or bill, or libel and answer, or pleadings alone, or pleadings and proof." Wooster v. Hnndy, 23 Fed. :Rep. 56. Most deferentially I submit that the words of the statute do not necessarily imply that ceremony which is described by the last above quotation. They may describe that, of course, if it happen to be in fact the final hearing; but generally they do not, but rather that other hearing described by Mr. Daniell in the above extract, which finally terminates the case; and it is "on" this final hearing, but not for it that the attorney's fee is taxable, and it is not taxable before that time. It is the confusion of these two hearings that causes the trouble in these cases. If we examine the law of costs in courts of equity,-and that branch of it was as well understood ·as others,-we can see why the statute preferred to allow a lump sum at the end of the suit to undertaking to regulate allowances on interlocutory proceedingl:l for solicitor's costs, and determining a.t the final hearing what should be decreed, in that behalf, to the parties to the suit, as against each other. The notion that congress, in the midst of that law, intended to ignor6 all other services, and give the lawyer a fee of $20 for the particular labor of ceremoniously trying the case on its merits, no matter how much or how little, but necessarily always some little, seems untenable, to say the least of it. Combining the law of costs in all departments, and taking the statute as a whole, it seems to be a reasonable construction to hold that congress intended to abolish the idea of giving particular fees for particular services of the lawyer, itemized somewhat like a grocer's bill, and at the end to allow the party, on the score of attorney's costs, an aggregate sum of money, not at all jrom for any particular service, but for all that was done in the beginuing to end: In cases at law, if there had been a tdal by jury, $20; not for a trial by jury, but in a case tried by jury, for all services rendered, $20. If there be judgment without a jury, $10; not $10 for the ceremony of taking a .jurlgment without a jury, but for all services in the case, that sum. If the case be discontinued, $5; not for the discontinuance itself, but for the entire service in a discontinued case. But in all equity and admiralty cases, (with the exception mentioned in the proviso,) because of their peCUliarities and comparatively larger amount of professionq,l work, this plan of gradation was dropped, and, when finally disposed of, $20 were allowed on the score of attorney's costs, whether tried before a jury, as they might be, or
not, as they generally are,-whether disposed of in one way or another,-so that they are finally heard, or, in other words, ended. The contrary doctrine reverses this plan of allowing one sum for all services, and relegates the allowance to one fee-and a very large one it may be under some circumstances-for a particular service, which is often the slightest in the case, and that, too, the most difficult of ascertaining and defining; for, it is often impossible to tell whether a given state of facts constitute "a trial before a jury" or "a final hearing," or not; and, besides, we must, on that theory, go beyond the record, and determine aliunde whether the fee be chargeable, by ascertaining somehow by evidence whether the particular service was in fact rendered. It establishes the manifest injustice of refusing any allowance, in equity and admiralty cases, after the work is all done, if the plaintiff chooses to dismiss a lost cltuse, in order to evade the fee,. rather than submit it for formal decision,-a result not, possible in law cases, and as to which there is no reason for so singular a distinction. The fallacy consists in looking at the act as giving a fee to the lawyer for a specific item of service, when it is an allowance to the party to the suit in lieu of a bill of costs taxable before that time, and including many different items of attorney's taxable costs. Construed as this opinion contrues it, there need never be any doubt about the taxable costs for attorney's fees due the parties in any case, and the statute is homogeneous as to attorney's costs to be taxed in all branches of the jurisdiction. Construed the other way, it is always hard to tell whether the fee should be taxed in equity and admiralty cases; it works injustice in many of them, establishes senseless distinctions, and involves much confusion. I have not the least doubt that congress meant to give, in every equity and admiralty case, a taxed fee of $20 whenever and however it was finally ended, with the single exception specifically mentioned in the statute, and that it did not intend to merely provide a fee for the ceremony of trying the case before the judge on its merits, leaving all other services unprovided for, and without any fee at all, and devolving upon the court in those cases to determine, on facts not in the record, whether or not they were so far tried "on the merits" as to be charged for in the bill of costs; and thus substituting those words "tried on the merits" for "final hearing," as used in the statute. 'I have the word of the original anthor of the statute, then a representative and now a senator in congress, for the construction I give the act. He thinks the case of Goodyel(T v. Sawye1', supra, correctly construes it; and while, of course, this is no technical support for that case, it gratifies me to know that he approves it, for he is a competent and trustwortby interpreter of that statute, and an able lawyer. Nevertheless, since my brethren elsewhere have not approved that ruling, and uniformity of practice may be of more importance than consistency or even correctness of judgment, I shall, when the point again arises, consider whether I should abandon my own matured con-
victions, and conform onr practice to that of other conrts by a reversal of that opinion, in deference to theirs. Wooster v. Handy, 23 Fed. Rep. 49; Mercartney v. Crittenden, 24 Fed. Rep. 401; Consolidated, etc., Co. v. American, etc., Co., Id. 658. But see Andrew8 v. Cole, 20 Fed. Rep. 410. Plausible, however, as is the suggestion that I shall now reverse it, I do not think this case requires that course, and I reserve the point for further reflection. Here the facts are that the case was dismissed for want of prosecution, on motion of the defendants, with full notice and under peculiar circumstances, not at all like any of the other cases. In Me1'cartney v. Crittenden, supra, the plaintiiJ dismissed the bill voluntarily, after demurrer overruled and answer filed. In McLean v. Cllirlc, 23 Fed. Rep. 861, there was a demurrer overruled and answer filed, the fee being claimed, as if upon a final hearing; and it was properly denied, since the case did not, as in P.rice v. Coleman, 22 Fed. Rep. 694, go off upon demurrer without further proceedings. But in this case, when the demurrer was overruled, as reported in P(trtee v. Thomas, 11 Fed. Rep. 769, an answer was filed and the cause stood at issue. The plaintiff sUbsequently died. The suit thus became defective, but what was the precise technical effect of the death upon the right of the defendant as to costs, or how it might be propfrom the docket, if at all, without revivor, may be doubterly ful. Beames, Eq. Costs, 195; 2 Daniell, Gh. Pro (1st Ed.) 359,360; Id. (5th Ed.) 1506 et seq. We were relieved from the consideration of the matter of proper practice in that regard by the action of the parties. Following the 'state practice, (as is generally done, without objection, in all doubtful emergencies, notwithstanding equity rule 90,) the defendants suggested and proved the death of the plaintiff, and gave notice to the personal representatives, or heirs at law, and to counsel of record, of a motion to dismiss for want of prosecution, if a revivor should not be had. The representatives not desiring to revive, and being willing that the case should be thus disposed of, the motioll was granted, and there was a judgment against them and the surety on the cost-bond for costs. It is impossible to say certainly how far the doctrine that there must be "a trial on the merits" to en· title the parties to a taxation of the docket fee is to be pressed in this direction, or how far, operating in that way, it shall properly go in denying the fee in a case like this, where work has been thoroughly done, which ought to give it to the party to whom costs have been awarded; for in Wooster v. Handy, supra, it is carried in an opposite direction, to the extent of giving more than one fee in a single case, and establishing that very many docket fees may be allowed, if very many ''final hearings" should be had, in the same case. But since no case cited is a precedent for this, and being uncertain how to apply the principle contended for so that it shall operate uniformly in all directions with reasonable satisfaction to a sense of justice to those concerned or interested in the bill of costs, I feet, with my convicv.27F.no.5-28
tions of the meaning of the statute, that, while I should possibly follow the precedents in judgment, I should not lead them beyond the strict limits they define by their own peculiar facts. Motion disallowed.
A bill of lading deliverable to the order of the shipper, and attached to a draft drawn upon the purchaser, and sent to a bank' for acceptance and collection, " with no other instructions, is rightfully delivered by the bank on acceptance of the draft, and passes the title to the goods, and the bank need not hold the bill of lading until payment.
A consignor who. on discovery of the purchaser's insolvency, haa notified the defendant not to deliver goods to him or his assigns, has no right of stoppage in fJran8itu, aa against an indorsee of the bill of lading for valuable con· sideration, even though such valuable consideration be an antecedent debt. 1
A bill of lading, running to the order of the shipper, being- delivered unindorsed to the purchaser by the shipper's agent, with intent to pass the title, transfers the title to the property as absolutely as would a bill of sale.
Demurrer to Amended Complaint. On November 17, 1883, the plaintiff shipped a car-load of flour at St. Paul, Minnesota, by the defendant's transportation line, consigned to itself at Boston, and took a bill of lading therf:lfor showing such consignment. On the same day plaintiff made its draft, at 15 days' sight, against the flour mentioned in the bill of lading upon one Whitcomb, of Boston, and forwarded the draft, with the bill of attached, unindorsed, to the Tremont National Bank of Boston "for acceptance and collection." Upon presentation, November 22nd, Whitcomb accepted the draft, and received the bill of lading from the bank without indorsement. He afterwards indorsed and transferred the bill of lading to the National Bank of Redemption for an ante· cedent debt which he owed said bank. Such transfer of the bill of lading by Whitcomh was not in full payment or satisfaction of the antecedent debt, but with the understanding that the bank should sell the flour on its arrival in Boston, and Whitcomb should have credit on his debt for whatever amount the flour brought. If the proeeeds of the flour should amount to mora than said debt, the balance was to be paid back to Whitcomb; and if the proceeds Wf\re less than the debt, then Whitcomb should pay the bank the deficit. 1.'he apand note, 476.