2. Chicago, Milwaukee & St. Paul Railway Company v. Lowell, 151 U. S. 209, distinguished. MacLeod v. Graven's Administratrix, 129.

3. Adams v. Niemann, 46 Michigan, 135, Showman v. Lee, 86 Michigan, 556, and Heineman v. Schloss, 83 Michigan, 153, distinguished. Tefft v. Stern, 148.

4. Ernest v. Nicholls, 6 H. L. Cas. 405, The Commercial Bank of Canada v. The Great Western Railway Company of Canada, 3 Moore, P. C. N. S. 295, and Irvine v. The Union Bank of Australia, 2 App. Cas. 366, distinguished. Louisville Trust Company v. Louisville, New Albany and Chicago Railway Company, 550.

5. Western National Bank v. Armstrong, 152 U. S. 346, distinguished. Dittey v. Dominion National Bank of Bristol, Virginia, 613.

6. Union Trust Company v. Morrison, 125 U. S. 591, distinguished. Whitely v. Central Trust Company of New York, 643.

7. The Dayton, Xenia and Belpre Railroad Company v. Lewton, 20 Ohio St. 401, distinguished. Ib.

8. United States ex rel. Day v. Mayor, etc., of the City of New Orleans, 8 Fed. Rep. 112, Fourth National Bank v. Franklin County, 10 Central Law Journal, 193, and Supervisors v. Kennicott, 103 U. S. 551, distinguished. Fuller v. Aylesworth, 657.

CASES FOLLOWED.

1. Blount's Administratrix v. Grand Trunk Railway Company, 22 U. S. App. 129, followed. MacLeod v. Graven's Administratrix, 129. 2. Zopfi v. Postal Telegraph Cable Company, 22 U. S. App. 136, followed. Postal Telegraph Cable Company v. Zopfi, 141.

3. Morris v. Landauer, 6 U. S. App. 510, followed. Tefft v. Stern, 148. 4. California Fig Syrup Company v. Putnam, 33 U. S. App. 283, followed. California Fig Syrup Company v. Frederick Stearns and Company, 234.

5. McClure v. Township of Oxford, 94 U. S. 429, followed. Manhattan Company v. City of Ironwood, 369.

6. Western and Atlantic Railroad Company v. Roberson, 22 U. S. App. 187, followed. Louisville Trust Company v. Louisville, New Albany and Chicago Railway Company, 550.

7. Nashua and Lowell Railroad Corporation v. Boston and Lowell Railroad Corporation, 136 U. S. 256, followed. Ib.

8. St. Louis and San Francisco Railway Company v. James, 161 U. S. 545, followed. Ib.

9. Marbury v. Tod, 22 U. S. App. 267, followed. Ib.

10. Clark v. Barnard, 108 U. S. 436, and Graham v. Boston, Hartford & Erie Railroad Company, 118 U. S. 161, followed. Ib.

11. St. Louis, Vandalia and Terre Haute Railroad Company v. Terre Haute and Indianapolis Railroad Company, 145 U. S. 393, followed. Ib.

12. Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268, followed. Dittey v. Dominion National Bank of Bristol, Virginia, 613.

13. Lant v. Morgan's Administrator, 43 U. S. App. 623, followed. Lant v. Morgan's Executors, 640.

CASES REAFFIRMED.

The decision of this court in the case of Penn Mutual Life Insurance Company v. Mechanics' Savings Bank and Trust Company, 37 U. S. App. 692, adhered to, and a petition for a rehearing of the case denied. Penn Mutual Life Insurance Company v. Mechanics' Savings Bank and Trust Company, 75.

CAUSE OF ACTION.

The rule that damages resulting from one and the same cause of action must be sued for and recovered once for all does not apply in cases where the parties have agreed upon a settlement of a part of the damages and released all right of action for the parts so settled; and such a release cannot be pleaded as a bar to a suit for the other part, although that embraced in the settlement and that sued for constitute together but one cause of action. Lumley v. Wabash Railroad Company, 476.

1. Section 8739 of Howell's Annotated Statutes of the State of Michigan (Supplement, 1890), which prohibits preferences in general assignments, has no application to a chattel mortgage executed to a trustee for the benefit of certain of the mortgagor's creditors. Tefft v. Stern, 148.

2. A chattel mortgage was executed to a trustee for the benefit of nine of the mortgagor's creditors, three of whom might, by the finding of a jury, have been thus secured with a fraudulent intent; the other six were entirely innocent of any knowledge of or participancy in any fraud. It appeared that prior to the execution of the mortgage the mortgagors had delivered to the three creditors charged with fraud certain goods, the value of which it was claimed should have been deducted from the amount of their debts as stated in the mortgage. It appeared that after the payment of expenses and costs the trustee in the mortgage would not have sufficient funds to fully pay the six valid debts. The mortgage provided: "With the residue and remainder he [the trustee] shall next pay in full the following claims and demands hereinabove mentioned, if sufficient there shall be." Held, (1) That there was no error in refusing to submit to the jury the question of the fraudulent intention of the mortgagors and of the three creditors charged with fraud, inasmuch as such fraud, even if established, would not render the mortgage invalid as to the

six innocent creditors; (2) that as between the secured creditors there was no obligation, direct or implied, that the respective creditors should only get such share of the estate as would come to them if all of the debts were as specified in the mortgage, or if all of them were valid; (3) that, if there had been credits on any or all of the debts which had not been entered, or if it turned out that some of the debts had been paid, the other creditors would be entitled to the increased share which these credits or these paid debts would give them in the event that the estate should not be sufficient to pay in full; and (4) that whether or not the six innocent creditors were entitled to the pro rata could not be determined in a proceeding by garnishment against the trustee in the mortgage, who was the only person named as garnishee, especially since another writ of garnishment was executed on the trustee at the same time as that of the plaintiffs. Ib.

CHOSE IN ACTION.

A contract to pay money for stock is a chose in action within the meaning of section 1 of the act of Congress of March 3, 1875, 18 Stat. 470, c. 137, as amended by the acts of Congress of March 3, 1887, 24 Stat. 552, c. 373, and of August 13, 1888, 25 Stat. 433, c. 866. Coler v. Grainger County, 252.

See JURISDICTION, B, 3, 4.

CITIZEN.

See CORPORATION, 2;

LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY, 2.

BILL IN EQUITY ; LOUISVILLE, NEW ALBANY AND
CORPORATION, 2;

CHICAGO RAILWAY COMPANY, 2.

PLEADING, 1, 3.

CLAIMS AGAINST DECEDENTS' ESTATES.

See ATTACHMENT, 7.

COLLATERAL PROCEEDINGS.
See ATTACHMENT, 10:
INJUNCTION, 2, 3, 4.

COLLISION.

1. Where a collision takes place in foreign waters between vessels of the United States, and there is no proof that the rules of navigation under the laws of the United States are different from those in force in the foreign waters, it will be assumed, in the absence of such proof, that they are the same as the law of the forum. The City of Mackinac, 190.

2. Section 4233 of the Revised Statutes, which provides rules for preventing collisions on the water in the navigation of vessels of the navy and of the mercantile marine of the United States, is in force as to navigation in the harbors, lakes, and inland waters of the United States, and the mercantile marine of the United States on the Detroit River is therefore governed by this section of the Revised Statutes. Ib.

3. The two foregoing rules applied to a collision which took place between two vessels belonging to the mercantile marine of the United States on the Canadian side of the Detroit River. Ib.

4. There is a presumption of fault against a vessel not fully manned in case of collision with a vessel which is properly manned. Ib.

5. A collision took place on the Canadian side of the Detroit River between a steamer and a steamtug at night. It was cloudy, rainy, and dark, but good for seeing lights. The steamtug had been made fast on the starboard quarter of a propeller, and together they had been proceeding on a course east by south at about four to six miles an hour. Their lights were seen by the steamer, which was the overtaking vessel, a quarter of a mile ahead, about two to four points on her port bow. The steamer was proceeding on a course east half north at about twelve to thirteen miles an hour. She did not check her speed until about four hundred feet from the propeller's stern. The steamtug had no lookout, and, not observing the steamer, she swung off gradually from the propeller directly across the steamer's course. The steamer had not distinguished the steamtug from the propeller, but had, meanwhile, ported and stopped her engines. The steamtug gave two blasts. The steamer reversed her engines, but her headway carried her into the steamtug and through a full bunker of coal on the steamtug's starboard side, and she broke a plate from the steamtug's boiler. H., one of the owners of the steamtug, and R., a passenger on board of her, were drowned. The steamtug's papers called for five men, but she had only four, her master acting as pilot and lookout. There was a conflict of testimony as to the smoke obscuring the steamer's lights. The steamer was properly manned. Held, (1) That it was the duty of the steamer to signal her intention to pass to starboard before the vessels were so near that a doubt as to course might be dangerous; (2) that it was the duty of the steamer to take every precaution to keep out of the way of the vessel she was overtaking, and she should have starboarded and passed astern when it was to be feared that the propeller might round to under a port wheel; (3) that the steamtug was legally a part of the propeller until she cast off, and that she was not cut off from complaining of the steamer's faults with respect to the propeller merely because a collision did not actually take place with the propeller, the steamtug being entitled to act on the assumption that any overtaking vessel would signal her intention to pass; (4) that, had such signal been given, the tug would have been prevented from swinging off and across the steamer's course; (5) that the steamer gave no satisfactory explanation for her failure to signal or to pass astern, and she was at

fault therefor; (6) that there was a fair presumption that the collision would have been avoided if the steamtug had not been shorthanded, but had had a lookout whose sole duty was that of a lookout, as the dimming of the steamer's lights was not of such a character that the lights could not have been seen by a proper lookout; (7) that the failure of the steamtug to have a lookout was a direct violation of law and she was at fault therefor; (8) that the steamtug was entitled to recover half damages againt the steamer; (9) that the right of action which accrued to the representative of H. was under a foreign statute, and was to be enforced according to the common law, and, as H. was the managing owner of the steamtug, he must have known that she was without a lookout and was responsible for the negligence of the master of the tug, his agent, and the right of action of his representative was therefore completely barred by his contributory negligence; and (10) that, R. being merely a passenger on the steamtug, his representative was entitled to a recovery against the owner of the steamer and the owners of the steamtug, but, as the owners of the steamtug were not parties to the suit brought by R.'s representative, the steamtug having been brought in in rem on petition of the owner of the steamer, in which form such action would not lie, the owner of the steamer was liable for the full damages due to R.'s representative, and the petition againt the steamtug should be dismissed. Ib.

See PASSENGER.

COMITY.

1. While the statutes of a State have in themselves no extra territorial force, yet rights acquired under them are always enforced by comity in the state and Federal courts in other States, unless they are repugnant to the public policy or laws of the forum. Illinois Central Railroad Company v. Ihlenberg, 726.

2. Section 193 of the constitution of Mississippi, adopted November 1, 1890, provides that "knowledge by any employé injured of the defective or unsafe character or conditions of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby." In Tennessee it is established by the decisions of the Tennessee courts and not by statute that knowledge by an employé of a defect in machinery causing a personal injury to him is a defense to an action therefor against the master unless the employé complains and a promise to repair is made to him. The provision of the Mississippi constitution, as construed by the Mississippi courts, is that a railroad company is liable for an injury caused by defects in the machinery unless the injury was due to the recklessness or wantonness of the employé. Held, (1) That a Federal court in Tennessee would enforce the Mississippi constitution with respect to a tort committed in Mississippi; and (2) that the provision of the Mississippi constitution was a mere change in the law in respect to the implied contract between master and servant, and that, in only affecting such contracts in Mississippi made after its enactment, it was simply a varia