the name of the United States, to the use of the party injured. Howard v. U. S., 102 Fed. 77, 42 C. C. A. 169. But it is a perversion of this right to invoke it where nothing but nominal damages are shown, and a recovery asked, as here, for $20,000, to secure the payment of 6 cents.

Let judgment be entered on the demurrer in favor of the defendant, with costs.

NOTE.

In O'Connell v. Mason, 127 Fed. 435, it was held that a suit against a judge for acts done in a judicial capacity, even in excess of his jurisdiction, could not be maintained, and, having been begun in forma pauperis under Act July 20, 1892, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706], would be dismissed, on motion, as frivolous.

THE BRATSBERG.

THE SOUTHWARK.

(District Court, E. D. Pennsylvania. February 18, 1904.)

No. 7.

L. COLLISION-COST OF REPAIRS-EVIDENCE.

The cost of repairs for damage by collision is proved prima facie by testimony that the repairs were rendered necessary by reason of the collision, that they were made, and at the lowest price, and the testimony of the ship's agents that they had paid the bills.

2. SAME-DAMAGES RECOVERABLE-SURVEY AND DOCKING CHARGES.

Where repairs made necessary by collision and other repairs are made at the same time, the cost of the survey and docking charges will be divided.

In Admiralty. Suit for collision. On exceptions to report of commissioner.

Henry R. Edmunds, for libelant.

Horace L. Cheyney, for respondent.

J. B. MCPHERSON, District Judge. The solution of the dispute in this case concerning the cause of the steamship's injury was so likely to be affected by the testimony concerning the character and extent of the injury itself, that the whole matter was referred to a commissioner by agreement, in order that he might determine both the cause of the injury, and what amount, if any, the libelant might be entitled to recover. His report, which is now before me upon exceptions, is a very satisfactory presentation of the facts as he has found them from the conflicting evidence. Upon the main point in controversy I agree that his finding is in accord with the more probable view of the matter, and that much of the injury from which the steamship was found to be suffering was caused by stranding upon the rocky bottom near the wharf from which the tug was engaged in taking her away. This being so, the testimony leaves no doubt about the negligence of the tug or about the innocence of the steamship. The full liability of the tug being thus established, the cost of the re

pairs is to be ascertained by evidence of the usual kind. The method of proving the cost of the repairs that were done at Philadelphia is not objected to, but part of the damage was repaired at Liverpool, and one of the objections to the commissioner's report is that he did not require the production of competent evidence in order to prove the cost of the work that was done at that port. In the reception of evidence on this point the commissioner states that he followed the practice that has prevailed in this district for more than 20 years, and an examination of the record shows the correctness of his statement. Since the case of The Rebecca v. The America, Fed. Cas. No. 11,619a, it has been held in this district that the cost of repairs is proved prima facie by testimony that "the repairs were rendered necessary by reason of the collision, that they were made, and at the lowest price, and the testimony of the ship's agents that they had paid the bills." In the report of the case on appeal to the Circuit Court (4 Fed. 337) the facts are there stated to be, that the master testified before the commissioner concerning the aggregate cost of the repairs, and that the owner's agent then testified that he had paid the bills that made up this aggregate, and produced the receipted accounts approved by the master, although the agent admitted that he had no personal knowledge that the repairs had been made. Another statement of the facts is to be found in the commissioner's original report, on file in the clerk's office, in the following language:

"The master testifies what damage was done, and what was the cost of the necessary repairs. He also testifies as to several other items of claim, and he distinctly establishes the fact that the repairs were actually made, and that the services were actually rendered. Both he and Mr. Gardeicke testify as to the care exercised in securing the repairs at the lowest possible price, and the charges for the greater part of the other items are regulated by the custom of the port. When, in addition, it is shown that the bills rendered were approved by the master, that they were actually paid by the agents of the Rebecca, and on her account, it seems to the commissioner to be satisfactorily established in the first instance that such items constitute proper charges in this case."

It should also be noted that an examination of the depositions shows that a survey had been made, the report of which was no doubt before the commissioner.

The evidence had been objected to as "secondary, when it ought to have been primary," and it was insisted by the respondent's proctor "that the proper parties to make proof of these facts were the persons who had made the repairs and rendered the services, and who had received payment for them." He refused to offer any testimony, and, as already stated, the commissioner (Hon. Wayne MacVeagh) ruled that a prima facie case had been made out. His ruling was sustained by Judge Butler, and also by Judge McKennan, before whom the case was heard on appeal to the circuit court. Judge Butler's opinion on this point is as follows:

"It must not be overlooked that the only question raised by the exceptions is whether the libelant has presented a prima facie case. As respects the repairs, I can see no room to doubt that he has. The testimony is direct, positive, and sufficiently certain. While more might have been produced, it was quite sufficient until answered."

Judge McKennan said:

"But it is contended that these claims were allowed upon insufficient or improper evidence. Payments were rendered to persons who rendered bills for repairs made upon the Rebecca, which were certified by the master, who superintended the work, by the agent of the libelant. This was primary proof of the expenditure, of its purpose and its necessity, and, unless answered by counter proof, was altogether sufficient to justify the allowance of such payments."

The testimony in the present case was at least as strong as in The America. As to some of the bills it was even stronger, for these had also been approved by the libelant's underwriters, who settled their liability on this basis, and the correctness of these bills is therefore even more probable than if the master's approval stood alone. Upon pages 95 and 96 of Coote on Admiralty Practice the method of proving the cost of repairs is thus referred to:

"In cases of damage the registrar and merchants are entitled to have laid before them the ship's protest and the survey, in addition to the various vouchers for the repairs.

"A comparison of the vouchers with the protest and the survey will in ordinary cases afford the needful test whether the repairs charged are no more than what the actual damage itself warranted; for such a comparison must lead to the certain detection of any attempt on the part of the shipowner to take advantage of his injury, and to make a new ship out of an old one by launching out into excessive and exorbitant reparation incompatible with the statements of the protest and the recommendations of the survey. If, however, the owners of a damaged vessel merely avail themselves of the occasion to effect an additional reparation, without the intention of charging the other side with it, no exception will be taken either by the court or others.

"In addition to the protest and survey, and the silent testimony of bills and receipts, it is competent to the plaintiff to produce other evidence; e. g., the testimony of persons who saw the ship and the damage done to her before the repairs were commenced, and who were capable, from practical experience in shipping matters, of estimating the extent of the repairs rendered necessary by the collision, and what would be the expense of effecting them. * Where a vessel has been damaged, the plaintiff discharges the onus of proof which lies upon himself by bringing in the protest, survey, and vouchers for all his payments, and such evidence is prima facie sufficient. * 串 It would appear that, whatever the question be, the vouchers are never required to be verified by the affidavits of the various tradesmen and handicraftsmen from whom they have emanated. By the practice of the registrar and merchants they would appear to prove themselves."

There can be no doubt that the protest, if there be a protest, and especially the survey, are quite as important items of the proof as the vouchers themselves. But I do not think it was essential to produce the Liverpool survey of the hull in the present case, since the survey made at Philadelphia immediately after the stranding was in evidence, and there was no suggestion that the ship had been injured afterwards. There was evidence enough to shift the burden of proof upon the respondent.

But I think that the cost of the survey and the docking charges ought to have been divided. Other repairs, not made necessary by the stranding, were made at the same time, and the English rule, which divides the charges under such circumstances, seems to be fair and equitable (Marine Ins. Co. v. China Steamship Co., 6 Aspinall, Maritime Cases, 68; s. c. II Appeals Cases, 574; and Ruabon v.

London Assurance Co., 8 Aspinall, Maritime Cases, 346); and it was followed in this district in the unreported case of The Atlas v. Le Lion, No. 77 of 1895.

A decree in favor of the libelant, with interest and costs, may be entered in accordance with this opinion.

LOUDEN MACHINERY CO. v. AMERICAN MALLEABLE IRON CO.

(Circuit Court, S. D. Iowa, E. D. February 22, 1904.)

No. 365.

1. FOREIGN CORPORATIONS-ACTIONS-JURISDICTION-SERVICE.

Plaintiff, an Iowa corporation, purchased certain iron products of defendant, an Illinois corporation, to be delivered f. o. b. Chicago. A difference occurring between the parties was attempted to be settled by their attorneys, who resided in Chicago, and, having failed, defendant's president, having occasion to travel through Iowa, stopped at plaintiff's place of business in order to settle the claim; and, on his stating that it would be necessary to lay plaintiff's proposition before defendant's board of directors, notice of suit was served on him. Defendant owned no property in Iowa, never had an agency in the state, and never did any business there. Held, that the service on defendant's president under such circumstances was insufficient to confer jurisdiction of defendant on the Iowa courts.

2. SAME-STATE STATUTES-SPECIAL APPEARANCE-EFFECT-FEDERAL Courts. A state statute prohibiting special appearance does not preclude a defendant sued in a state court, after removing the cause to the federal court, where special appearances are allowed, from appearing specially and objecting to the service on the ground that the defendant was not amenable to the process of the courts of such state.

8. SAME JURISDICTION-OBJECTIONS-WAIVER.

Where a foreign corporation was sued in the state court, and filed a plea reciting fraud, and facts showing that the state court had no jurisdiction over such corporation, and at the same time filed its bond and petition to remove the cause to the federal court, such acts did not constitute an appearance or waiver of the corporation's objection to the state court's jurisdiction.

W. J. Roberts, for plaintiff.

H. Scott Howell & Son, for defendant.

MCPHERSON, District Judge. The plaintiff, a corporation and citizen of Iowa, brought this action in the district court of Jefferson county, Iowa, against the defendant, a corporation and citizen of Illinois. By a written contract between the parties, the defendant was to furnish certain iron products f. o. b. Chicago, consigned to plaintiff, in Iowa. For a failure to so load the cars at Chicago, this action was brought to recover the damages by reason of such products enhancing in price. Each of the parties had an attorney in Chicago. These attorneys attempted to adjust the matters of difference, but failed. A Mr. Palmer was president of defendant. He was desirous of visiting Ottumwa, Iowa, and he concluded to, and did, stop off at Fairfield,

13. See Appearance, vol. 3, Cent. Dig. § 50.

Iowa, where plaintiff's offices and works were. At Fairfield he tried to adjust the matter in suit. Plaintiff's officers made a proposition to him, which he (Mr. Palmer) said he would take to Chicago and lay before his board of directors; he claiming he could not act upon it. Thereupon, and within a few minutes, a notice of this action was served upon him.

The defendant had no office, place of business, agent, agency, or property in Iowa, and never had. It had never done any business in Iowa. The contract in suit was made by mail, and was an Illinois contract, to be by defendant wholly performed in Illinois. An officer going over the country "does not carry the corporation in his pocket.' To enable a foreign corporation to be sued in this state, it must be engaged in business in this state. And the showing is that defendant never owned a dollar in property in the state, and never had an agency in the state, and never did any business in the state. But it is said that, because its president came to the state on a visit, and stopped off a train to try and settle a business difference, he thereby subjected his company to the jurisdiction of the Iowa courts. Carrying on of business by a corporation in another state means something more than a single transaction, and certainly something more than the one transaction of an attempt to compromise a matter connected with a contract of the state where the foreign corporation resides and has its being. Morawetz on Corporations, vol. 2, §§ 979-981; United States v. Telephone (C. C.) 29 Fed. 17-35; Carpenter v. Westinghouse (C. C.) 32 Fed. 434; St. Clair v. Cox, 106 U. S. 350-357, I Sup. Ct. 354, 27 L. Ed. 222; St. Louis Wire Mill Co. v. Wire Co. (C. C.) 32 Fed. 802; Maxwell v. Railroad (C. C.) 34 Fed. 286; Reifsnider v. Publishing Co. (C. C.) 45 Fed. 433; Clews v. Iron Co. (C. C.) 44 Fed. 31; Doe v. Mfg. Co., 104 Fed. 684, 44 C. C. A. 128; Cooper Co. v. Ferguson, 113 U. S. 727-734, 5 Sup. Ct. 739, 28 L. Ed. 1137. And the cases cited call attention to so many others that I need not multiply citations.

As yet, I cannot believe that a foreign corporation, having a difference with an Iowa citizen concerning a contract not made in this state, surrenders itself to Iowa courts because an agent, with or without authority, comes to this state, seeking to adjust such difference. If such be the law, then compromises, so much favored by law, are largely at an end as to foreign corporations.

The only case called to my attention, upholding plaintiff's contention, is one decided on the circuit by Judge Grosscup, in the case of Houston v. Filer (C. C.) 85 Fed. 757. But that case is not authoritative, and, standing alone, as it does, I cannot follow it. Nor is the other case cited by plaintiff's counsel (Insurance Company v. Spatley, 172 U. S. 602-611, 19 Sup. Ct. 308, 43 L. Ed. 569) in point. Because in that case the company for years had done business in and under the laws of the state, including the issuance of, and the delivery within. the state of, the policy in suit. The company having quit business in the state, an officer went to adjust the claim, and, while there, notice of suit was served on him. Judgment by default being rendered, it was upheld by the Supreme Court. But the state of facts in that case were quite different from those in the case at bar. In that case the company for years had done business in the state, and such business 127 F.-64