Cases not Otherwise Reported.

trict of Ohio. October 26, 1896. Affirmed, without an opinion. Mr. J. W. Jenner for plaintiffs in error. Mr. Darius Dirlam for defendant in error.

No. 384. MULCAHY V. LAKE ERIE ANnd Western RAILWAY COMPANY. Error to the Circuit Court of the United States for the Northern District of Ohio. December 9, 1896. Reversed, without an opinion, and remanded, with directions to remand to the state court. Mr. Charles A. Thatcher for plaintiff in error. Mr. John B. Cockrum for defendant in

error.

No. 314. ROBINSON'S ADMINISTRATOR v. DETROIT AND CLEVELAND STEAM NAVIGATION COMPANY. Appeal from the District Court of the United States for the Eastern District of Michigan. November 10, 1896. Discontinued by consent after the reversal of the decree dismissing the libel (ante, p. 190) and before any rehearing was had under the order of October 5, 1896, granting a rehearing. Mr. John C. Shaw for appellant. Messrs. Wells, Angell, Boynton & McMillan for appellee.

No. 423. SAGINAW VALLEY, THE. Appeal from the District Court of the United States for the Western District of Michigan. October 14, 1896. Affirmed, without an opinion. Mr. F. Howard Mason for the claimants of the Saginaw Valley, appellants. Mr. John C. Richberg for the Escanaba Towing and Wrecking Company, libellant, appellee.

No. 494. WEST MICHIGAN FURNITURE COMPANY V. AMSTERDAMSCHE BANK. Error to the Circuit Court of the United States for the Western District of Michigan. February 2, 1897. Dismissed with costs on motion of Messrs. McGarry & Nichols, counsel for plaintiff in error.

CORPORATION, 6; STOCK AND STOCKHOLDERS, 3.

An action for damages for death based on foreign statutes giving no lien against the offending vessel, in force at the place where the cause of action arises, can be entertained in a Federal Court of Admiralty by libel in personam but not in rem, and the right of action under such foreign statutes is to be enforced as it would be in the foreign country according to the principles of the common law, contributory negligence being a complete bar to recovery. The City of Mackinac, 190.

See COLLISION, 1 to 5.

843

ADMISSIONS.

Conversations between parties to a controversy in which one makes a

statement of fact of which both have personal knowledge, and which naturally calls for a denial by the other if the statement is untrue, are competent against the silent party as admissions by acquiescence of the truth of the statement. The weight of the admission varies with the circumstances of the case and the strength of the probability that the statement, if untrue, would have evoked a denial, and is always for the jury guided by a proper caution of the court as to the theory upon which such conversations are admitted. With respect to written communications, however, the rule is different, because the failure of one receiving a letter to answer it may be attributed to many causes besides an acquiescence in the truth of what is written, and such a rule would furnish a dangerous weapon in the hand of an unscrupulous party to make evidence in his favor against a careless opponent. Unanswered statements in letters are seldom to be regarded as admissions by the person addressed, but exceptional circumstances may justify the court in submitting them to the jury with a proper caution. Morris v. Norton's Administratrix, 739. See DEMURRER, 1.

1. Where a complaint or petition in a suit in a United States court is amended so that the amended complaint or petition shows the facts necessary to sustain the jurisdiction of the court so far as the citizenship of the parties is concerned, the averment by way of amendment to the original complaint or petition must be construed as of the date of the original complaint or petition, and be given effect as if the averment had been made a part of the original petition. Baltimore and Ohio Railroad Company v. McLaughlin, 181.

2. Where the court permits an amendment to a bill in equity to be filed to meet the charge of laches, and the amendment as filed meets the charge, it is error for the court to strike the amendment from the files. Lant v. Morgan's Administrator, 623.

ANSWER.

See DEMURRER, 1, 2.

APPEAL.

1. Section 7 of the act of March 3, 1891, 26 Stat. 826, 828, c. 517, which provides that in a suit in equity an appeal may be taken to a Circuit Court of Appeals from an interlocutory order or decree granting or continuing an injunction, and the amendment thereof by virtue of the act of February 18, 1895, 28 Stat. 666, c. 96, which provides that an appeal in such a suit may be taken thereto from an interlocutory order or decree dissolving an injunction, being remedial legislative provisions, are entitled to a favorable construction advancing the right which they provide for as far as is consistent with their language. Bissell Carpet Sweeper Company v. Goshen Sweeper Company of Grand Rapids, Michigan, 47.

2. Congress, in using the language "interlocutory order or decree" in the statutes above referred to, had regard to the distinction between an interlocutory order and an interlocutory decree, and intended, by allowing an appeal from an interlocutory order granting or continuing an injunction, to describe those preliminary orders which grant an injunction upon a hearing on affidavits, involve no determination of the merits, and are allowed at the discretion of the chancellor upon a balancing of inconveniences, and, by allowing an appeal from an interlocutory decree granting an injunction, to allow an appeal from a perpetual injunction ordered and allowed upon a final hearing of the merits, where the same decree refers the cause to a master for an accounting. Ib.

3. When a case has been once decided by a Circuit Court of Appeals on appeal, and remanded to the Circuit Court, whatever was before the Circuit Court of Appeals, and disposed of by its decree, is considered as finally settled. The Circuit Court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. It cannot vary the decree; or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded. If the Circuit Court mistakes or misconstrues the decree of the Circuit Court of Appeals, and does not give full effect to the mandate, its action may be controlled, either upon a new appeal or by a writ of mandamus to execute the mandate. The Circuit Court may, however, consider and decide any matters left open by the mandate, and its decision of such matters can be reviewed by a new appeal only. Ib.

4. Where a preliminary injunction is allowed by a Circuit Court in a suit in equity upon a prima facie showing and without the determination of the merits, a Circuit Court of Appeals, on an appeal, will consider only the question as to whether, on the prima facie case made, there has been an abuse of discretion on the part of the Circuit Court, un