[b] (U. S. D. C., N. Y., 1896) An alleged custom that a carrier of brick must await the convenience of the vendee or subvendee in unloading, and that the master is bound to prevent putting on board inferior brick at the time of loading, held invalid, as unreasonable and indefinite.-Young v. One Hundred and Forty Thousand Hard Brick, 78 Fed. 149.

8. Wrongful Acts of Third Persons.

[a] (U. S. C. C. A., Minn., 1896) A strike of the employés of the charterer without grievance or warning, and an organized and successful effort on their part to prevent, by threats, intimidation, and violence, other laborers, who were willing to do so, from discharging a vessel, held to excuse a charterer for a delay of a week in the performance of that work.-Empire Transp. Co. v. Philadelphia & R. Coal & Iron Co., 23 C. C. A. 564, 77 Fed. 919, 35 L. R. A. 623.

9. Fault of Vessel or Owner.

[a] (U. S. C. C. A., Fla., 1899) Where, after a cargo was loaded, the master refused to sign the bill of lading presented by the charterer, on the ground that it was incorrect, but, after several days' delay, altered and signed the same, the charterer cannot be charged with demurrage for the time so taken. -The Assyria, 39 C. C. A. 97, 98 Fed. 316; Dernier v. H. Baars Co., Id.

[b] (U. S. C. C. A., Mass., 1896) The owner of a vessel cannot ordinarily retain the cargo for nonpayment of freight, and charge demurrage arising from such detention.-Wellman v. Morse, 22 C. C. A. 318, 76 Fed. 573. 10. Lay Days.

[a] (U. S. C. C. A., Fla., 1899) Where a charter party provided that a cargo of lumber should be loaded by the charterer, and should be "furnished" at the average rate of 50,000 superficial feet per running day, the lay days for loading are to be computed on the amount actually loaded, and not upon the amount delivered to the vessel for loading, a part of which was not actually loaded.-The Assyria, 39 C. C. A. 97, 98 Fed. 316; Dernier v. H. Baars Co., Id.

[b] (U. S. C. C. A., Fla., 1899) The object of providing in a charter party for one clear day after notice of the readiness of the vessel to receive cargo before the lay days shall commence is to allow the charterer such time for preparation, and, unless made so by the terms of the charter or custom of the port, Sunday is not to be counted as such a day, and, where notice of readiness is given on Saturday, the lay days do not commence until Tuesday. The Assyria, 39 C. C. A. 97, 98 Fed. 316; Dernier v. H. Baars Co., Id. [e] (U. S. C. C. A., Tex., 1899) A charter party fixed the demurrage for each day's detention of the vessel "by the default" of the charterers or their consignees. It made no provision for "dispatch" or "quick dispatch" in loading or discharging the cargo, but fixed the minimum amount to be loaded or discharged each day, and provided that the lay days should commence "from the time the captain reports himself ready to receive or discharge cargo." Held, that under the latter provision the lay days did not commence until the vessel was ready and in position to receive or discharge cargo, and that the contract did not bind the charterers for demurrage for a delay of the vessel in obtaining a wharf at which to discharge, notwithstanding a notice of readiness to discharge from the captain, where, as the owners knew or should have known, all the wharves at the port of destination were public, and under the exclusive control of a harbor master, who directed the movements and position of all vessels thereat, and by the rules of the port each vessel was required to wait her turn.-Flood v. Crowell, 34 C. C. A. 415, 92 Fed. 402.

[d] (U. S. D. C., Fla., 1897) The term "strike," in the exceptions to the running of lay days in a charter party, excuses the charterers for delay caused by a refusal of all the available workmen to work except for an advance in wages demanded in the midst of loading a vessel.-Wood v. Keyser, 84 Fed. 688, affirmed (1898) 31 C. C. A. 358, 87 Fed. 1007.

[e] (U. S. D. C., Fla., 1897) Days lost in putting up the gear of a vessel, preparatory to taking her cargo, being, under the terms of the charter party,

a part of the charterer's duty, should be included in the lay days.-Wood v. Keyser, 84 Fed. 688, affirmed (1898) 31 C. C. A. 358, 87 Fed. 1007.

[f] (U. S. D. C., Fla., 1897) An exception of strikes from the running days provided in a charter party includes a strike brought about by demands of the charterers that the laborers loading the vessel shall conform to certain reasonable rules and regulations.-Steamship Co. v. Keyser, 84 Fed. 693, affirmed (1898) 31 C. C. A. 347, 87 Fed. 1005.

[g] (U. S. D. C., Fla., 1897) The fact that charterers have for some time acquiesced in certain unreasonable customs of baymen loading their ships is no waiver of their right to require the abandonment of such customs, and a strike resulting from such demand is within the exceptions in the charter party. Steamship Co. v. Keyser, 84 Fed. 693, affirmed (1898) 31 C. C. A. 347, 87 Fed. 1005.

[h] (U. S. D. C., N. Y., 1899) Where two bills of lading were given requiring delivery of part of a cargo at different ports, they constitute independent contracts, and hence the consignee was entitled, under maritime rule 4, to one full calendar day after the vessel's arrival at the most distant port to furnish a berth for discharge before being liable for demurrage.—Bowen v. Sizer, 93 Fed. 227.

11. Burden of Proof.

[a] (U. S. C. C. A., Minn., 1896) Proof that the vessel was delayed in unloading beyond the customary time for discharging such cargoes at the port of her delivery throws upon the charterer the burden of excusing the delay by proof of the actual circumstances of the delivery and his diligence thereunder.-Empire Transp. Co. v. Philadelphia & R. Coal & Iron Co., 23 C. C. A. 564, 77 Fed. 919, 35 L. R. A. 623, affirming (D. C. 1895) 70 Fed. 268. [b] (U. S. C. C. A., Minn., 1896) The burden is on him who seeks to recover damages for the failure to discharge a vessel in the customary time to prove that the charterer did not exercise reasonable diligence to discharge her under the actual circumstances of the particular case.-Empire Transp. Co. v. Philadelphia & R. Coal & Iron Co., 23 C. C. A. 564, 77 Fed. 919, 35 L. R. A. 623, affirming (D. C. 1895) 70 Fed. 268.

12. Rate and Amount.

[a] (U. S. D. C., N. Y., 1893) Interest is allowed on demurrage awarded for delay during negotiation in regard to repairs necessitated by collision.Paul v. The M. Kalbfleisch and The Wm. Fletcher, 59 Fed. 198. [b] (U. S. D. C., N. Y., 1899) Maritime rule 5 provides that the demurrage charge for delay of a vessel discharging a lumber cargo shall be at the rate of 15 cents per M. feet, board measure, of entire cargo delivered. Held that, in the absence of clear proof of a change in the custom, seven-eighths inch dressed boards will be treated as inch lumber, in determining the amount of the demurrage chargeable.-Bowen v. Sizer, 93 Fed. 227.

[c] (U. S. D. C., Ohio, 1897) The measure of damages for detention of a vessel, in loading or unloading, beyond the time stipulated in her charter, is the probable net earnings of such vessel during the period of her detention, and an inquiry into a subsequent period is inadmissible.-Barge Co. v. Turney, 79 Fed. 109.

13. Lien.

[a] (U. S. C. C. A., Minn., 1897) Discharging cargo after giving notice of a claim for demurrage is not a waiver of the lien, where such cargo is placed on the dock, and kept separate from other goods, so as to be capable of identification.-Fuel Co. v. McBrier, 28 C. C. A. 466, 84 Fed. 495.

[b] (U. S. C. C. A., Minn., 1897) The right of a vessel carrying cargo "free of handling" to a lien for demurrage for delay of the consignee in beginning to discharge is not affected by the fact that the delay arose from the refusal of the consignee to receive the cargo because damaged in transit by an excepted peril, and the fact that during the delay the consignee was negotiating with the owner to purchase the damaged cargo at a reduced price.Fuel Co. v. McBrier, 28 C. C. A. 466, 84 Fed. 495.

[c] (U. S. D. C., Va., 1881) When cargo has been absolutely delivered to the consignee before service of process thereon, the lien for demurrage is lost.

-Two Hundred and Sixteen Loads and Six Hundred and Seventy-Eight Barrels of Fertilizer, 88 Fed. 984.

[d] (N. Y. City Ct. 1900) Where the owner of a vessel delayed his action for demurrage for six years, the claim was stale.-Jameson v. Sweeney, 66 N. Y. Supp. 494, 32 Misc. Rep. 645.

[e] (Wis. Sup. 1897) The vessel has a lien on the cargo for demurrage, enforceable in admiralty.-Supply Co. v. Galvin, 71 N. W. 804, 96 Wis. 523. 14. Release.

[a] (U. S. C. C. A., N. Y., 1898) The consignees of the cargo of a vessel chartered by the consignors rendered an account to the agents of the owners of the vessel, in which they credited such owners with the freight, which was payable on delivery of the cargo, and paid the amount thereby shown, taking a receipt therefor. Held, that such settlement did not conclude the owners of the vessel as to a claim for demurrage which did not arise from any fault of the consignees, and for which they were not liable, but for which the consignors were liable under the terms of the charter party.— Burrill v. Crossman, 33 C. C. A. 663, 91 Fed. 543.

[b] (U. S. D. C., N. Y., 1900) A receipt in full for all claims under a charter executed by a master at the port of discharge on payment to him of only the freight due does not release the charterers from a claim for demurrage which was also made at the time by the master, and rejected, where the master was compelled to give such receipt in order to collect the freight, and did so under protest.-Durchman v. Dunn, 101 Fed. 606.

(106 Fed. 866.)

In re TOLLETT.

(Circuit Court of Appeals, Sixth Circuit. March 5, 1901.)

No. 898.

BANKRUPTCY-HOMESTEAD-VOLUNTARY CONVEYANCE-FRAUD - CONSTRUCTIVE

-ACTUAL.

Where a debtor residing in Tennessee, shortly before filing his petition in bankruptcy, acting in good faith on the advice of his attorney, voluntarily conveyed his homestead to his wife, and afterwards, before his examination, receiving different advice, secured a reconveyance to himself, and on obtaining leave amended his schedule by including the homestead therein, such homestead should be set aside to the bankrupt in the bankruptcy proceedings, since the conveyance to his wife was not fraudulent in fact, and, as his creditors had no interest in or claim on his homestead interest in the land, the conveyance of such interest could not injure or be fraudulent as to them.

Petition for Revision of Proceedings in the District Court of the United States for the Eastern District of Tennessee.

Harvey Terry, for petitioner.

J. V. Lee, opposed.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON, Circuit Judge. The petitioner, a voluntary bankrupt, seeks to review the order of the district court denying him a homestead in land set out in his schedule as an asset. 105 Fed. 425. He is a citizen and resident of Tennessee, and is the head of a family. For many years he owned and occupied a small farm, valued at $1,000, which he claimed and held as a homestead under the homestead law

of the state. This was the only land owned or claimed by him at the time of his bankruptcy. Within four months prior to his adjudication as a bankrupt he conveyed this land by a deed, in which his wife joined, to one Taylor, for the recited consideration of $500, but remained in possession. Shortly after his bankruptcy, and before examination, Taylor reconveyed same to petitioner, who thereupon applied for and obtained leave to amend his schedule, and include this land as an asset, and to claim a homestead therein. The referee denied this claim, and on request certified the question to the district judge, together with an agreed statement of the facts and his own finding. Upon this record the district judge affirmed the order of the referee. The ground upon which the right of homestead was denied was that under the Tennessee decisions a debtor was not entitled to a homestead in property recovered by his creditors which had been fraudulently conveyed by him, and that the reconveyance procured by the bankrupt after he had been adjudicated a bankrupt accomplished no more than would have resulted from a suit by the trustee in bankruptcy. The findings of the referee and the opinion of the district judge are reported in 105 Fed. 425, 427. The Tennessee constitution (article 11) provides that:

"A homestead in the possession of each head of a family and the premises therein, to the value, in all, of one thousand dollars, shall be exempt from sale, under legal process, during the life of such head of a family to inure to the benefit of the widow, and shall be exempted during the minority of their children occupying the same; nor shall said property be alienated without the joint consent of husband and wife, when that relation exists."

The homestead estate or interest is but an estate carved out of the fee for the life of the debtor, his widow, and his children during their minority. The homestead interest is the estate which is exempted from sale under legal process, and which can be conveyed only by the joint conveyance of husband and wife, where that relation exists. The remainder interest, subject to this homestead estate, is subject to sale by legal process to pay the debts of the owner of the fee. Flatt v. Stadler, 16 Lea, 371; Howell v. Jones, 91 Tenn. 403, 19 S. W. 757. The only land which the petitioner owned was the land in which he now claims a homestead. Inasmuch as its value did not exceed $1,000, no formal assignment of homestead in it was neces sary. The homestead right attached to and covered the whole land and its improvements. Briscoe v. Vaughn, 103 Tenn. 308, 52 S. W. 1068. Neither does the right of homestead depend upon occupancy since the Tennessee act of 1879, for it constitutes, when assigned, a vested life estate, which passes under the deed of the owner in the same manner as any other life estate. Acts 1879, c. 171 (Shannon's Tenn. Code, §§ 3798, 3800); Cowan v. Carson, 101 Tenn. 523, 50 S. W. 742; Briscoe v. Vaughn, 103 Tenn. 308, 52 S. W. 1068. The only interest which was subject to the creditors of the petitioner was the remainder interest in the land in which he now asks a homestead. If the homestead estate was not subject to creditors, it is difficult to see how a conveyance limited to that estate could be fraudulent as to creditors. Leslie v. Joyner, 2 Head. 514. A voluntary conveyance of a homestead neither hinders nor prejudices

creditors, and, whatever the motive of the grantor, creditors are not wronged, inasmuch as it was not subject to either legal or equitable process in their favor. Thomson v. Crane (C. C.) 73 Fed. 327; Fellows v. Lewis, 65 Ala. 343, 354. The difficulty is that the petitioner conveyed the entire fee, thereby including the remainder interest, which was subject to creditors. But does it follow that, because exempt and nonexempt property are joined in one conveyance, the creditors' rights are enlarged if the conveyance was a voluntary one? How a homestead may be acquired or lost must depend upon the law of the state under which the right of homestead arises. That law, as construed and applied by the highest court of Tennessee, constitutes a rule of property binding upon the federal courts in respect to homestead rights claimed in that state. Brashear v. West, 7 Pet. 608, 8 L. Ed. 801; Allen v. Massey, 17 Wall. 351, 21 L. Ed. 542; Bank v. Glass, 25 C. C. A. 151, 79 Fed. 706.

What, then, is the effect upon a debtor's right of homestead if he fraudulently convey the property in which he claims it? In Cowan v. Johnson, 2 Tenn. Cas. 41, it was held that, where the husband and wife joined in the execution of a conveyance which was fraudulent in fact, neither could claim a homestead in the property so conveyed when their deed had been set aside by creditors. In Ruohs v. Hooke, 3 Lea, 302, a transfer of a house and lot, occupied by the debtor to his wife, based upon love and affection, was held void as to existing creditors, because the husband had not retained property sufficient to provide for his existing liabilities. But upon application by the wife homestead was assigned in the property so recovered. Cowan v. Johnson was distinguished upon the ground that both husband and wife had participated in a conveyance which was fraudulent in fact. The case is a distinct authority for holding that the right of the wife to claim a homestead in property subject to the right of homestead is not forfeited when conveyed by the husband to the wife by a deed which is only constructively fraudulent. In Nichol v. Davidson Co., 8 Lea, 389, a conveyance by the husband to his wife was set aside for fraud, and the wife denied a homestead. The case was rested upon Cowan v. Johnson. The latest Tennessee case dealing with this subject is that of Rosenbaum v. Davis, decided since the decision in the court below, and reported in 60 S. W. 497. There a conveyance by the husband to the wife was set aside by creditors as fraudulent in law. The wife was held not to be estopped by her acceptance of the deed, and was allowed homestead out of the property recovered from her by the creditors. The preceding cases were fully reviewed by Judge McAllister, and the conclusion reached that the wife's right of homestead is not lost when the conveyance is not fraudulent in fact. It is a matter of no importance whether the application for a homestead came from the petitioner, or his wife, or both. The homestead is for the joint benefit of husband, wife, and minor children. The wife's application, as would that of the husband, inures to the use of all. In Himes v. Smith, 2 Tenn. Cas. 431, a homestead was allowed upon the husband's application against his own deed, his wife not having joined therein. A valid joint conveyance by husband and wife, or a joint participa