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upon his writ of error. In such circumstances it becomes necessary to determine whether he shall, pending his writ of error, be allowed to give bail for his appearance in the district court after the determination of his case in this court. The writ of error, when filed within 60 days of the judgment complained of, operates as a supersedeas or stay of proceedings; and a writ of error from this court to the circuit or district court, in the case of the conviction of a crime not capital, is a matter of right without giving any security. Section 1007, Rev. St.; In re Claasen, 140 U. S. 200, 11 Sup. Ct. 735, 35 L. Ed. 409; Hudson v. Parker, 156 U. S. 277, 283, 15 Sup. Ct. 450, 39 L. Ed. 424; rule 38 of this court (31 C. C. A. cviii., 90 Fed. cviii.).

If the writ of error is not allowed until after the lapse of 60 days, it will equaily operate as a supersedeas, provided the judge signing the citation shall so direct. But the stay of proceedings simply prevents the execution of the judgment of the trial court, and by no means involves the question as to whether pending the writ of error he shall be detained or go at large upon bail. Neither the power nor the general duty to admit to bail after conviction, and pending a writ of error, can be regarded as open, in view of the thirty-sixth rule of the supreme court, and the conclusions announced by that court in Hudson v. Parker, where Mr. Justice Gray, after a consideration of the statutory provisions in respect of bail, said:

"But, however it may be in a capital case, it is quite clear, in view of all the legislation on the subject of bail, that congress must have intended that under the act of 1891 (26 Stat. 827), in cases of crimes not capital, and therefore bailable of right before conviction, bail might be taken, upon writ of error, by order of the proper court, justice, or judge. And we are of opinion that any justice of this court, having power, by the acts of congress, to allow the writ of error, to issue the citation, to take the security required, by law, and to grant a supersedeas, has the authority, as incidental to the exercise of this power, to order the plaintiff in error to be admitted to bail, independently of any rule of court upon the subject, and that this authority is recognized in the first paragraph of rule 36."

Rule 38 of this court is, in substance, rule 36 (31 C. C. A. cvii., 90 Fed. cvii.) of the supreme court. That this court has the power, by virtue of its jurisdiction over the proceedings in error, to admit to bail in criminal cases pending upon writ of error, is indisputable. The eleventh section of the act to establish circuit courts of appeals (26 Stat. 829) provides that:

"All provisions of law now in force regulating the methods and systems of review, through appeals or writs of error, shall regulate the method and system of appeals and writs of error, provided for in this act, in respect of the circuit courts of appeals, including all provisions for bonds or other se curities to be required and taken on such appeals and writs of error, and any judge of the circuit court of appeals, in respect of cases brought or to be brought to that court, shall have the same powers and duties as to the allowance of appeals or writs of error, and the conditions of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States respectively."

It follows from this broad power that this court, or its judges, may exercise, in aid of its appellate jurisdiction in criminal cases, the same powers in regard to the allowing of writs of error, or admission to bail pending a writ of error, which were formerly exercised in appellate criminal proceedings by the supreme court or its justices,

by virtue of the provisions of statutory law in force, or by implication from the grant of jurisdiction over proceedings in error. 36, said the supreme court in Hudson v. Parker, "was so framed as to give effect to the appellate jurisdiction conferred by the act of 1891 in the manner most consistent with the provisions of the various acts of congress concerning the same matter." The same rule has been adopted by this court to give effect to the jurisdiction conferred upon it by the act of 1891, and by the act of January 20, 1897 (29 Stat. 492), withdrawing from the supreme court jurisdiction of criminal cases not capital, and conferring the same on this court. There seems to have been no disagreement in the supreme court in respect of the power of the supreme court to admit to bail in criminal cases pending on writ of error; for Mr. Justice Brewer, in his dissenting opinion, expressed his agreement with the assertion that the court "has power to admit to bail in criminal cases pending in error," though he deduced the power "to let to bail solely from the grant of jurisdiction over the proceedings in error," and differed with the majority in respect to the power of a single justice, not assigned to the circuit to which the writ of error issued. From whatever source the power comes it is clear that this court, as an appellate court, has the power to admit to bail pending a writ of error. The granting of the writ of error in itself stays the execution of the sentence of the trial court. Detention pending the writ is only for the purpose of securing the attendance of the convicted person after the determination of his proceedings in error. If this can or will be done by requiring bail, there is no excuse for refusing or denying such relief. This seems to be the view taken of the thing and policy of the statute of the United States; for in Hudson v. Parker, cited above, the court said:

"The statutes of the United States have been framed upon this the ry: that a person accused of crime shall not, until he has been finally adjudged guilty in the court of last resort, be absolutely compelled to undergo punishment, but may be admitted to bail, not only after arrest and before trial, but after conviction and pending a writ of error."

The fact that bail has been refused by the trial judge, though not conclusive, is a fact which would make it more seemly, in the absence of some great urgency, that further application should be made to the appellate court, which, by virtue of its appellate jurisdiction, may properly be called upon to make all proper orders for the custody of the defendant pending the hearing of his writ of error. We quite agree with the counsel for the government, that all presumption of innocence is gone after conviction, and that proceedings resorted to for the mere purpose of delay should be discouraged. We do not, however, deem it wise, or in harmony with the humane principles of our law, that proceedings to review alleged error committed upon the trial of a defendant should be so far discouraged as to altogether deny the right to bail in that class of cases deemed bailable before conviction. That it should be made the interest of defendants, after conviction, to speed the hearing in the appellate court, we quite agree, and all unnecessary delays, due to the conduct of the defendant seeking a review, may well be discouraged by allowing bail for a time only sufficient to insure the filing of the transcript in the court

of appeals, reserving the question of further bail until lapse of the time thus fixed, when a new bond may be taken by the trial court on application to it, or by direction of the appellate court, for such time as the latter may prescribe. The district court denied bail upon the ground that this was the third trial and third conviction upon the same indictment. We cannot regard this fact a sufficient ground for denying bail during the pending of a third writ of error.

The application of the petitioner will be allowed on condition that he enter into bond in the same amount of the bond upon which he is now at large, conditioned to make his appearance in the district court for the Western district of Kentucky, at Louisville, on the first Wednesday in May, 1902, and from day to day thereafter until discharged from his obligation by a new bond or other order of that court. The bond to be executed may be approved by the court below or by any judge of that court.

(113 Fed. 454.)

CUDDY et al. v. CLEMENT et al.

PRINCE et al. v. OGDENSBURG TRANSIT CO. (Circuit Court of Appeals. First Circuit.

No. 393.

January 16, 1902.)

1. MARITIME LIENS-SUPPLIES-CONTRACT WITH OWNER.

The rule applied that by the maritime law no lien is presumed to arise for supplies or labor furnished a vessel on a contract made by the owner, and proof is required that the minds of the parties to the contract met on a common understanding that such a lien should be created. Iris, 100 Fed. 104, 40 C. C. A. 301, considered.1

The

2. SAME

IMPLIED LIEN.

The rule that an owner of a vessel, who is not also the master, may create an implied lien on her for supplies, is a modern one, confined to the United States, and not a part of the maritime law, and the distinc tions and limitations of such rule have never been clearly and fully declared; but the true rule undoubtedly is, with reference to implied liens created by the owner, as well as to express liens created by him in the form of bottomry r respondentia, that there must be a maritime necessity, and this implies both a need of repairs or supplies, and a reasonable impracticability of obtaining the same on the credit of the owner.

(

8. SAME.

A contract between a corporation cwning and operating a large fleet of steamers on the Great Lakes, and having its principal place of business in the state of New York, and a firm of coal dealers having yards at Cleveland, Ohio, and Sandwich, Canada, by which the latter agreed to furnish such coal as the company's vessels might need at such ports during the navigation season, construed, and held, in the light of the circumstances, and of similar transactions between the parties in previous years, not to give the dealers liens on the vessels for coal supplied them thereunder.

4. SAME-STATE STATUTES-LIMITATION TO DOMESTIC VESSELS.

Rev. St. Ohio, § 5880, creating liens on steamboats for supplies, labor, etc., furnished under contract with the master or owner, must be restricted in its operation to domestic vessels.2

Webb, District Judge, dissenting.

1 Maritime liens for supplies and services, see note to The George Dumois, 15 C. C. A. 679.

2 Maritime liens created by state laws, see note to The Electron, 21 C. C. A. 21.

Appeal from the Circuit Court of the United States for the District of Massachusetts.

For opinion below, see 107 Fed. 978.

Harvey D. Goulder (Goulder, Holding & Masten and Carver & Blodgett, on the brief), for appellants. Louis Hasbrouck, for appellees.

Before PUTNAM, Circuit Judge, and WEBB and ALDRICH, District Judges.

PUTNAM, Circuit Judge. The petitioners in this case, now the appellants, were coal suppliers, doing business under the name of Cuddy-Mullen Coal Company. The rule of law which governs the parties was laid down by our opinion rendered on February 2, 1900, in The Iris, 40 C. C. A. 301, 100 Fed. 104, 106, 110. The Iris was reaffirmed by us in 41 C. C. A. 679, 101 Fed. 1006, and it came before the supreme court on a petition for certiorari, which was denied, under the title of Woodworth v. Nute, 179 U. S. 682, 21 Sup. Ct. 915, 45 L. Ed. 194. The portions of the opinion in The Iris, 40 Č. C. A. 301, 100 Fed. 104, to which we refer, are as follows:

"By the maritime law, no lien for supplies or labor furnished a vessel is presumed to arise on a contract made by the owner, and proof is required that the minds of the parties to the contract met on a commen understanding that such a lien should be created. Neither is it sufficient that the party who furnished the labor or supplies gave credit, so far as his own intentions were concerned, to the vessel, or would not have furnished them except on the belief that he was acquiring a lien for them. In this respect the status is different from what it is with reference to liens for labor and supplies furnished a vessel on the order of her master. That understanding may, of course, be inferred from facts as well as from express language, as is ordinarily true with reference to all alleged contracts where it must be shown that the minds met."

*

In the case at bar, the vessels on which the petitioners claim liens were foreign to the ports where the supplies were delivered them, while in The Iris the vessel in question was domestic. Therefore many of the observations in The Iris are not applicable here.

The facts which relate to this appeal are sufficiently stated in the opinion of the learned judge who disposed of the case below, with few exceptions. The supplies, which were coal, were furnished in conformity with a contract, as follows:

"Memorandum of contract made and entered into this second day of May, 1898, by and between the Cuddy-Mullen Coal Company of Cleveland, O., and the Ogdensburg Transit Company of Ogdensburg, N. Y.:

"In consideration of the said Ogdensburg Transit Company hereby agreeing to take from the said Cuddy-Mullen Coal Company what coal the fleet of steamers operated by them may require at the points herein amed, during the season of navigati n of 1898, the Cuddy-Mullen Coal Company hereby agrees to furnish at its dock in Cleveland, at the following prices per ton: Youghiougheny R. M. coal, such as the steamers were supplied with last season, at the price of $1.70 per ton f. o. b. vessel and trimmed, or steam lump, same quality of coal, 10c. additional per ton, namely: To the steamers Governor Smith, F. B. Prince, W. J. Averill, J. B. Langdon, E. R. James, A. McVittis, W. L. Frost, W. A. Haskell. These prices are to continue in operation throughout the season of navigation of 1898. "Whatever coal any of said steamers may require in Detroit river is to be furnished by the said Cuddy-Mullen Coal Company at its docks at

51 C.C.A.-19

Amherstburg or Sandwich, at the price of $2.20 per ton aboard and trimmed for steam lump Youghiougheny.

"It is also understood and agreed that if the price of coal goes down, and other boats under similar conditions are furnished coal at Cleveland at lower prices than $1.70 per ton for run of mine, and $1.80 per ton for lump, then, and in that case, the Ogdensburg Transit Company is to have the benefit of such reduced price during the time it prevails.

"This contract is to be subject, however, and contingent upon strikes, accidents, delays of carriers, and other delays unavoidable or beyond the control of either of the parties hereto.

"Ogdensburg Transit Company.
"By F. W. Baldwin, Manager.
"Cuddy-Mullen Coal Co.,

"By L. Cuddy."

"The additional clause, written in ink, is agreed to by the signers. "F. W. Baldwin, Manager. "Cuddy-Mullen Coal Company, "By L. Cuddy."

The case came into the circuit court by reason of the fact that a receivership had been constituted of the assets of the Ogdensburg Transit Company, and the Cuddy-Mullen Coal Company intervened by summary petition, claiming admiralty liens. We do not pass on any question as to the jurisdiction of the circuit court. Moran v. Sturges, 154 U. S. 256, 276, 277, 14 Sup. Ct. 1019, 38 L. Ed. 981. It appears by the record, and also by the opinion of the learned judge who sat in the circuit court, that the coal was furnished at the ports named in the contract, to the various steamers as ordered by their masters, and as required from time to time during the season, and that for the number of tons received on each occasion each master gave a receipt to the Cuddy-Mullen Coal Company.

The receipt was attached to a voucher, forwarded by the CuddyMullen Coal Company to the Ogdensburg Transit Company. All the receipts and vouchers were alike in form, the Cuddy-Mullen Coal Company using therefor printed forms, furnished by the Ogdensburg Transit Company, at the request of the latter. The vouchers contained a proper form for receipts showing payment. At the close of the season, that is to say, on December 19, 1898,

these receipts were filled out and signed by the Cuddy-Mullen Coal Company, who on that day took therefor a note of the Ogdensburg Transit Company covering all the vouchers. This note contained the following, which was cited by the circuit court, but not especially noticed by it, and which, perhaps, was not brought pointedly to its attention; that is to say, it concluded with the words, "which, when paid, shall be in full for fuel supplied to the O. T. Co. steamers, season of 1898." It is stated that this note was on a form used by the Cuddy-Mullen Coal Company in its business in cases where a lien was claimed for coal furnished. It does not appear, however, that the Ogdensburg Transit Company knew, or had any intimation of this fact, or that the clause was ever brought specifically to its attention. Moreover, the day the note was given the vouchers were receipted by the Cuddy-Mullen Coal Company "in full," without any reservation like that contained in the note. This latter fact would not change the legal effect of this part of the transaction if its legal effect were directly involved, because,

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