section 21 of the general corporations act (P. L. N. J. 1896, p. 284), which is as follows:

"Where the whole capital of a corporation shall not have been paid in, and the capital paid shall be insufficient to satisfy its debts and obligations, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share as fixed by the charter of the corporation, or such proportion of that sum as shall be required to satisfy such debts and obligations."

In construing this section the Court of Errors and Appeals of New Jersey, in Weatherbee v. Baker, 35 N. J. Eq. 501, said:

"It is manifest from a consideration of the circumstances under which delinquent stockholders are liable to creditors for their unpaid subscriptions, and of the nature of the trust which is created, that in any proceeding to enforce the liability of stockholders under this section all the property and assets of the corporation must be taken into account, and that the proceeding must be for the benefit of all the creditors. The assets of the corporation and its total indebtedness must be brought into the account, for until they are ascertained neither the amount of money required to satisfy the creditors of the corporation nor the proportion of the sum required to be paid by each stockholder can be ascertained."

The receiver is acting in the interest of creditors. The stockholders who may be liable upon their stock subscriptions for the debts of the company are entitled to have the assets of the company disposed of and applied to the payment of those debts before being themselves called on to contribute anything toward such payment. The unpaid subscriptions to capital stock constitute a trust fund for the payment of the debts of the corporation, but that trust fund is not liable to drafts upon it, especially where the stockholders object, until after the property of the corporation shall have been disposed of. As was further said in Weatherbee v. Baker:

"Each stockholder is made liable on his unpaid subscription only for the proportion thereof which may be necessary for the payment of the debts of the corporation when the property of the corporation has proved insufficient for that purpose."

For the reasons above stated, the petition of the receiver must be denied. This conclusion renders it unnecessary to consider the other questions argued by counsel.

NICHOLS v. SOUTHERN OREGON CO.

(Circuit Court, D. Oregon. February 21, 1905.)
No. 2,845.

1. PUBLIC LANDS GRANTS-CONDITIONS-CONVEYANCE-OBJECTIONS.
Act Cong. March 3, 1869, c. 150, 15 Stat. 340, granted certain lands to
the state of Oregon in aid of military road construction, on condition that
the lands should not be sold to any one person, except in quantities not
greater than a quarter section, and at a price not exceeding $2.50 per
acre. The succeeding year the state granted the lands in question to the
road company in bulk, and by Act June 18, 1874, c. 305, 18 Stat. 80 [U. S.
Comp. St. 1901, p. 1517], Congress authorized the issuance of patents to
the state as fast as the lands should be selected and certified under the
grant, under which act patents were issued to the road company for the

granted lands. Held, that under such circumstances the United States, and not a subsequent applicant to purchase, was the only authority entitled to object to the nonperformance of the conditions with reference to disposition of such lands.

2. SAME-LACHES.

Complainant, having permitted a long period of time to elapse, was barred by laches from maintaining a bill to compel defendant to convey a portion of the land to him on payment of the price specified in the grant.

Pipes & Tifft and E. B. Seabrook, for complainant.
Dolph, Mallory, Simon & Gearin, for defendant.

BELLINGER, District Judge. By the act of Congress approved March 3, 1869, c. 150, 15 Stat. 340, there was granted to the state of Oregon certain lands to aid in the construction of a military wagon road from Roseburg, in this state, to the navigable waters of Coos Bay. The grant contained this provision:

"Provided, further, that the grant of land hereby made shall be upon the condition that the lands shall be sold to any one person only in quantities not greater than one quarter section, and at a price not exceeding $2.50 per acre."

On the 22d day of October, 1870, the state of Oregon, by an act of its Legislature, granted the lands in question to the Coos Bay Wagon Road Company, and that company built the road in aid of which the lands were granted. Thereafter, and on June 18, 1874, Congress passed "An act to authorize the issuance of patents for lands granted to the state of Oregon, in certain cases" (Act June 18, 1874, c. 305, 18 Stat. 80 [U. S. Comp. St. 1901, p. 1517]), in terms as follows:

"Whereas certain lands have heretofore, by acts of Congress, been granted to the state of Oregon to aid in the construction of certain military wagon roads in said state, and there exists no law providing for the issuing of formal patents for said lands,

"Therefore, be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that in all cases when the roads in aid of the construction of which said lands were granted are shown by the certificate of the Governor of the state of Oregon, as in said acts provided, to have been constructed and completed, patents for said lands shall issue in due form to the state of Oregon as fast as the same shall, under said grants, be selected and certified, unless the state of Oregon shall by public act have transferred its interests in said lands to any corporation or corporations, in which case the patents shall issue from the General Land Office to such corporation or corporations upon their payment of the necessary expenses thereof: provided, that this shall not be construed to revive any land grant already expired, nor to create any new rights of any kind except to provide for issuing patents for lands to which the state is already entitled."

In pursuance of this act, patents were issued to the Coos Bay Wagon Road Company for the granted lands. The defendant company has succeeded to the title to 30,000 acres in one body of the lands so patented, through mesne conveyances to the Southern Oregon Improvement Company, and from that company through a sale by a master in chancery, and it has succeeded through mesne conveyances to the remainder of such lands.

It is contended for the plaintiff that the grant in question is in effect an offer to sell the granted lands, to aid in building the road. mentioned, in quantities of not more than one quarter section to

any one person, at $2.50 per acre, and that the title acquired by the state was upon this trust; that the conveyance by the state of the lands in bulk was in violation of the trust which is impressed upon such lands in the hands of the defendant company, and that this trust will continue to exist until it is executed, in accordance with the terms of the granting act, by the sale of the granted lands in quantities to single purchasers of not more than 160 acres, and at a price not greater than $2.50 per acre. The plaintiff tenders. $400 in payment for 160 acres of land included in the grant and particularly described, which land he alleges to be of a value in excess of $2,000, and he prays that the defendant be required, by a decree of this court, to execute and deliver to him a deed of conveyance for the lands for which tender is made.

The grant was not a law for the sale of the granted lands. It did not offer them for sale. That was left to the state, subject to restrictions as to the price at which they should be sold and the quantity that should be sold to any one person. These restrictions were mere incidents of the grant, mere regulations that the state was required to observe in selling the granted lands, at such time after they were earned as the state should conclude to sell them. The object to be accomplished in no wise depended upon them. Whatever rights existed in respect to these restrictions belonged to the United States. No interest was created in the complainant. He is not a beneficiary in the grant, and he has no standing to complain that the state has violated its conditions in the manner in which it has disposed of the granted lands. That is a matter that can only be taken advantage of by the United States. Furthermore, above 30 years ago Congress authorized patents to issue to the state or to any corporation or corporations to which it had transferred its interest, and patents have been issued to the state's grantees in pursuance of that law. It is not necessary to consider whether this act was a waiver by Congress of the conditions subsequent in the grant. The transfer by the state and the several subsequent transfers were open disavowals of the trust relied upon, if it can be made out that there was such a trust. This great lapse of time is a complete bar to the recovery prayed for. When the bill shows upon its face that the plaintiff, by reason of lapse of time and of his own laches, is not entitled to the relief prayed for, the objection may be taken by demurrer.

The demurrer to the bill is sustained.

THE CUMBERLAND.

THE ADMIRAL FARRAGUT.

(District Court, D. Massachusetts. February 15, 1905.)

Nos. 1,354, 1,359.

COLLISION-DAMAGES-DEMurrage.

Where, at the instance of claimant, the cost of repairing a vessel injured in collision has been adopted as the measure of damages to the iibelant, he is entitled to recover, by way of demurrage, compensation for

the loss of her use during repair, or, where she was sold without repairing, but before the repairs could have been completed, he may recover demurrage to the time of sale.

[Ed. Note.-Demurrage, definitions and general principles, see notes to Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.] In Admiralty. Suit for collision. On exceptions to assessor's report.

Carver & Blodgett, for the Cumberland.

Frederic Dodge and Harrington Putnam, for the Admiral Farragut.

LOWELL, District Judge. This case comes before the court on exceptions to the assessor's report. The interlocutory decree directed that the damages should be divided, and it appears that both vessels were damaged.

The Cumberland was in collision July 7, 1902; was abandoned to the underwriters July 31st, and on that day the abandonment was accepted; was sold by the underwriters August 20th. The libelant claims demurrage between July 7th and August 20th. The claimant contends that no demurrage is allowable, but only interest. The assessor allowed demurrage to July 31st.

If the property of A. is injured by B., A. can recover from B. the damage suffered; but, in assessing this damage, a court or jury is guided by rules more or less artificial. Where a vessel is totally destroyed in a collision, the Supreme Court has decided that the libelant shall recover "the value of the vessel, with interest thereon, and the net freight pending at the time of the collision." The Umbria, 166 U. S. 404, 421, 17 Sup. Ct. 610, 41 L. Ed. 1053. See The Columbus, 3 W. Rob. 158. Under the circumstances stated, this rule is deemed to furnish a restitutio in integrum. That the wreck has been sold for a sum more or less considerable does not affect the rule, except by crediting the price received to the wrongdoer. But no plaintiff is permitted to enhance his damages, and so the respondent, whom the libelant seeks to charge with the original value of the vessel damaged (either the total value, or the balance left after deducting from the total value of the vessel the proceeds of the wreck), may show in reduction of damages that she can be restored by repair to her original condition for a smaller sum. He may then satisfy his liability by paying the cost of these repairs. The substitution of cost of repair for diminution in value as a measure of damages is ordinarily a concession to the claimant, and not a substituted method of assessment of which the libelant can avail himself at his discretion. If the repairs cost more than the loss of value, the claimant can ordinarily satisfy his liability. by paying the latter. The Havilah, 50 Fed. 331, 1 C. C. A. 519; The Venus (D. C.) 17 Fed. 925. Where loss of value is awarded, interest is ordinarily allowed from the collision to the time of payment. The Illinois (D. C.) 84 Fed. 697. Where the cost of repairs is awarded, the libelant recovers, in addition thereto, compensation for loss of the vessel's use during repair. This compensation is called "demurrage." Applying these rules to the case at bar, we find that the libelant sought to recover the difference between the value of the Cumberland before collision and her value after collision, as determined by the

price received for the wreck. Had the libelant obtained the assessment of damages by this rule, he would have received only interest on the sum awarded; but the claimant contended that the damages awarded should be limited to the cost of repair. Since this contention has prevailed, the payment of demurrage cannot now be resisted. There are cases in which demurrage has been allowed, although the vessel was sold before repair. Philadelphia Steam Towboat Co. v. Philadelphia R. R., Fed. Cas. No. 11,085, affirmed in 23 How. 209, 16 L. Ed. 433. In The Catherine, 17 How. 170, 174, 175, 15 L. Ed. 233, the wreck was sold, and the reference in the opinion of the Supreme Court to Williamson v. Barrett, 13 How. 101, 110, 14 L. Ed. 68, indicates that demurrage was to be allowed. In The Empire State, 2 Ben. 178, Fed. Cas. No. 4,473, nothing was said about demurrage. The interest there mentioned may well have been interest on the cost of repairs after they were made. The distinction between interest and demurrage is not based, as the claimant contends, upon the actual repair of the injured vessel by the owner. Interest attends an allowance for loss of value; demurrage, an allowance for cost of repair. The Empress Eugenie, Lush. 138; The South Sea, Swab. 141; The Ernest A. Hamill (D. C.) 100 Fed. 509. In La Champagne (D. C.) 53 Fed. 398, the cost of repair was used as a criterion (not the only one) of loss of value, but the award was based upon "the difference between her value in her damaged condition and her value before the collision." In The Rhode Island, Abb. Adm. 100, 106, note, Fed. Cas. No. 11,744, interest was allowed by the Circuit Court as compensation for loss of use (the method of computation adopted by the District Court), "not because I think it founded upon any fixed or established principle, but because it is just enough in itself, and I have not been able to find any principle that would justify the adoption of a higher measure of damages in the given case. The Rhode Island is not authority for depriving the libelant of demurrage where his recovery has been limited to the cost of repair.

The contention of the libelant is sustained, and demurrage is allowed to August 20th, when the vessel was sold. The libelant asks for no more, and the repairs could not have been completed by that time.

In re ALVORD.

(District Court, D. Connecticut. February 8, 1905.)

No. 1,244.

BANKRUPTCY-DISCHARGE-FAILURE TO KEEP BOOKS.

A discharge in bankruptcy is a great privilege, and demands that reasonable care, at least, shall be taken in advance by one who asks for it; and where a bankrupt, who was a man of business experience, failed to keep any books whatever from which his financial condition could be ascertained, he must be presumed to have intended to conceal such condition, and under Bankr. Act July 1, 1898, c. 541, § 14b (2), 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], is not entitled to a discharge.

[Ed. Note.-For cases in point, see vol. 6, Cent. Dig. Bankruptcy, §§ 752