was shown in evidence without objection; The Prudence, 204 Fed. 69, 122 C. C. A. 380, where there was no surprise, libelant alleging one fault could recover on proof of a different fault; Smith v. Wood Transp. Co., 103 Fed. 686, 43 C. C. A. 347, remanding case to permit filing of new pleading; The Stephen Morgan, 94 U. S. 603, 24 L. Ed. 267, applying rule and dividing damages for collision where both vessels were at fault; The Cambridge, 2 Low. 25, Fed. Cas. 2334, holding libelant for collision can rely on faults not alleged; The Coleman, 1 Brown, 461, Fed. Cas. 2981, applying rule and holding tug and tow jointly liable for collision with third vessel; Holmes v. O. & C. Ry., 6 Sawy. 265, 5 Fed. 76, awarding damages for negligent death of passenger on railway ferryboat; The Maryland, 19 Fed. 557, holding tug and third vessel jointly liable for damage to tow by negligent collision.

There is no doctrine of mere technical variance in admiralty, and it is duty of court to extract whole case from record and decide accordingly. Approved in J. T. Morgan Lumber Co. v. West Kentucky Coal Co., 181 Fed. 275, rule for division of damages is applicable to cases where loss results from negligence or fault of both parties; The Minnetonka, 146 Fed. 515, 77 C. C. A. 217, upholding power of admiralty court in libel for value of jewelry stolen by employee of ship, to permit amendment of libel to conform to proof as to value; Davis v. Adams, 102 Fed. 524, 42 C. C. A. 493, holding libelant entitled to amend at close to conform with evidence; The Gazelle, etc. 128 U. S. 487, 32 L. Ed. 500, 9 Sup. Ct. 143, applying rule in cross-libels for breaches of charterparty; The Cambridge, 2 Low. 24, Fed. Cas. 2334, holding libelant for collision can rely on faults not alleged; The Maryland, 19 Fed. 557, holding tug and third vessel jointly liable for damages to tow through negligent collision.

In action for collision, an omission herein to state failure of towboat to stop as a fault, held not injurious.

Distinguished in Lewis v. Atherton, 5 Okl. 94, 47 Pac. 1072, under Stats. 1893, c. 21, § 13, judgment against parties who had been seised of realty, and in whom title still appears of record, becomes lien on property though debtors had previously executed deed to third party.

Miscellaneous. Cited in The Robert W. Parsons, 191 U. S. 32, 48 L. Ed. 80, 24 Sup. Ct. 8, to point that admiralty has jurisdiction over actions arising out of collisions between canal-boats on Hudson River.

12 Wall. 173-175, 20 L. Ed. 365, HANDLIN v. WICKLIFFE.

Appointment of a judge by a military governor during the Rebellion was subject to revocation by such governor or his successor.

Approved in Pennywit v. Eaton, 15 Wall. 384, 21 L. Ed. 114, dismissing writ of error prosecuted for delay.

Authority of a judge appointed by a military governor during Rebellion ceased of necessity on the adoption of a new State Constitution, without military control.

Approved in dissenting opinion in Mechanics & Traders' Bank v. Union Bank of Louisiana, 22 Wall. 306, 22 L. Ed. 877, majority holding court established in captured Confederate territory by military authority, presumed to have been authorized by President; Betz v. Illinois Cent. R. R., 52 La. Ann. 893, 24 South. 656, arguendo.

12 Wall. 175–176, 20 L. Ed. 384, UNITED STATES v. CRUSELL.

Application for continuance of an appeal from Court of Claims, founded on fact that a motion for new trial has been made, will be granted when not for purpose of indefinite postponement.

Approved in United States v. Young, 94 U. S. 259, 24 L. Ed. 153, dismissing appeal where Court of Claims has granted a new trial.

Objection that the statutory limitation of the time for moving for a new trial has elapsed should be addressed to the lower court, and not to the appellate court, in opposition to an application for the continuance of an appeal on the ground of such motion.

Approved in Belknap v. United States, 150 U. S. 591, 37 L. Ed. 1192, 14 Sup. Ct. 184, refusing recovery to Indian agent accepting salary appropriated by Congress, but less than amount allowed by general law.

12 Wall. 177-181, 20 L. Ed. 381, UNITED STATES v. ALEXANDER.

Where act of 1848 provided for pensions to widows of revolutionary soldiers married before 1800, and act of 1853 gave pensions to those married after 1800 "in the same manner," the latter were entitled to pensions only from date of later act.

Cited in Northern Pacific R. R. Co. v. Barnes, 2 N. D. 360, 51 N. W. 401, arguendo.

In construing a statute, long-standing construction given by department whose duty it was to act under it is entitled to great weight.

Approved in In re Deans, 208 Fed. 1020, applying rule in construing words continuous residence” in naturalization statute; State v. Board of School Comrs., 183 Ala. 575, 63 South. 82, construing statute regarding lease of sixteenth section lands; Hahn v. United States, 107 U. S. 406, 27 L. Ed. 529, 2 Sup. Ct. 497, refusing recovery to customs officer seeking to share in fines and penalties under treasury regulations; Brown v. United States, 113 U. S. 571, 28 L. Ed. 1080, 5 Sup. Ct. 650, applying rule in holding act relating to retirement of naval officers applicable to warrant officers; Schell v. Fauché, 138 U. S. 572, 34 L. Ed. 1043, 11 Sup. Ct. 380, holding protest valid, and granting recovery of duties illegally exacted.

Distinguished in Fairbank v. United States, 181 U. S. 308, 45 L. Ed. 872, 21 Sup. Ct. 658, denying practical construction by legislature, entitled to weight construing unambiguous statutes.

12 Wall. 181-193, 20 L. Ed. 366, HOFFMANN v. BANK OF MILWAUKEE. By acceptance of a bill, the signatures of drawers, and their competency is admitted.

Approved in Bank of Williamson v. McDowell County Bank, 66 W. Va. 562, 564, 36 L. R. A. (N. S.) 605, 66 S. E. 768, 769, by taking forged check from person unknown for collection and indorsing it, bank became liable to drawee for money paid by him in ignorance of forgery; Jarvis v. Wilson, 46 Conn. 92, 33 Am. Rep. 21, accepter cannot set up want of funds in defense; First Nat. Bank v. Ricker, 71 Ill. 440, 22 Am. Rep. 105, cannot recover for forged check; Johnson v. Commercial Bank, 27 W. Va. 357, 55 Am. Rep. 324, payment of forged check purported to be made by payer not recoverable.

Payment by accepter cannot be recovered back unless fraud or no consideration in its inception, and such fact were known to holder at time he became such.

Approved in Grumbach v. Hirsch, 17 Tex. Civ. App. 620, 43 S. W. 1032, accepter cannot rescind for mistake in believing he held funds of drawer.

Where a bill, accompanied by bill of lading, is accepted and paid to innocent holders for value, in due course of business, the amount cannot be recovered back, though bill of lading is a forgery.

Approved in Hannay v. Guaranty Trust Co., 187 Fed. 687, where acceptance and payment of draft made on bank was conditional on genuineness of forged bill of lading, it was entitled to recover amount as having been paid by mistake; Varney v. Monroe Nat. Bank, 119 La. 947, 950, 13 L. R. A. (N. S.) 337, 44 South. 754, 755, where bank discounted draft with forged bill of lading attached, drawee who paid it on faith of genuineness of bill of lading could not recover from bank; Bank of Indian Territory v. First Nat. Bank, 109 Mo. App. 672, 83 S. W. 538, payment of draft by drawee cannot be avoided by him by showing he was mistaken in supposing he had money in his hands to pay it; Springs v. Hanover Nat. Bank, 209 N. Y. 233, 236, 52 L. R. A. (N. S.) 241, 103 N. E. 158, 159, drawee of draft who has paid same to bona fide holder for value, relying on bills of lading attached by drawer to draft, but not mentioned therein, cannot recover back money so paid from payee, who was in ignorance of fraudulent character of instruments; Mason v. Nelson, 148 N. C. 500, 501, 128 Am. St. Rep. 635, 18 L. R. A. (N. S.) 1221, 62 S. E. 628, where bank took assignment of bill of lading with draft attached, consignee of goods could not retain price of

goods on account of debt due him from consignor; Lewis Leonhardt & Co. v. W. H. Small & Co., 117 Tenn. 158, 119 Am. St. Rep. 994, 6 L. R. A. (N. S.) 887, 96 S. W. 1052, where drafts of sellers of hay were attached to bills of lading and transferred to bank, such bank did not become responsible for performance of contract for sale of the hay; Blaisdell Co. v. Citizens' National Bank, 96 Tex. 632, 75 S. W. 294, holding bank purchasing draft secured by bill of lading not liable to consignee paying same for short weight; dissenting opinion in Spencer & Co. v. Bank of Hickory Ridge, 115 Ark. 337, 171 S. W. 131, majority upholding rule in action by drawees against a bank to which they had paid amount of draft with forged bills of lading attached; Randolph v. Merchants' Bank, 7 Baxt. 462, allowing recovery of amount guaranteed by payee; Robinson v. Memphis etc. R. Co., 9 Fed. 135, railroad not liable for draft paid in reliance on fraudulent bill of lading; Morse v. Chicago etc. Ry., 73 Iowa, 233, 34 N. W. 828, and Landa v. Lattin, 19 Tex. Civ. App. 246, 46 S. W. 53, both arguendo.

Distinguished in Guaranty Trust Co. v. Grotrian, 114 Fed. 435, 57 L. R. A. 689, 52 C. C. A. 235, allowing acceptor to recover money paid where bill of lading forged.

Purchase of bill of lading with draft attached, as assumption of seller's obligation. Note, 49 L. R. A. 682.

Drawee's right to recover money paid on forged paper.

L. R. A. (N. S.) 70.

Note, 10

As between remote parties, e. g., acecpter and payee, who takes without notice and before maturity, failure of consideration or fraud is no defense, unless there is a failure in both transfers.

Approved in Cosmos Cotton Co. v. First Nat. Bank, 171 Ala. 397, Ann. Cas. 1913B, 42, 32 L. R. A. (N. S.) 1173, 54 South. 623, payee bank which cashed draft with blank bill of lading attached and forwarded same for collection was not liable to consignee arising from shortage in weight of goods; Johnson County Sav. Bank v. Kramer, 42 Ind. App. 553, 86 N. E. 86, in suit on draft brought by indorsee against accepter, indorsee was not affected by the matters of fraud and misrepresentation pleaded in defense; Morrison v. Farmers' etc. Bank, 9 Okl. 700, 60 Pac. 274, where bank purchased draft from drawer before maturity and gave drawer credit on deposit account for face of draft, it is purchaser for value unless it is shown that amount of deposit had not been paid prior to acceptance of draft; Goetz v. Bank, 119 U. S. 556, 30 L. Ed. 517, 7 Sup. Ct. 320, accepter bound to pay forged bill; Bank v. Ellis, 6 Sawy. 100, Fed. Cas. 859, accommodation party can only show want of consideration against accommodated; Heuertematte v. Morris, 101 N. Y. 71, 54 Am. Rep. 661, 4 N. E. 4, payee, without notice, acquiring before acceptance, though fraudulent, may recover; Randolph v. Merchants'

Bank, 7 Baxt. 462, allowing recovery for sum guaranteed by payee; Bank v. Evants, 2 Tex. Civ. App. 668, accepter, after plaintiff acquired bill, cannot raise absence of consideration.

Rights and liabilities of assignees of bills of lading. Note, 105 Am.
St. Rep. 359.

In suit by remote indorsee against accepter, if any intermediate holder, gave value, it sustains holder's title.

Approved in Bank of British North America v. Ellis, 6 Sawy. 100, Fed. Cas. 859, accommodation party can only show want of consideration against accommodated; Levy v. Ford, 41 La. Ann. 879, 6 South. 674, taker of a reissued note, before maturity, may recover, if intervening party took in good faith.

One discounting bill for drawer is stranger to accepter in respect to consideration of acceptance, whether accepted before or after payee receives it.

Approved in American etc. Bank v. Gluck, 68 Minn. 134, 70 N. W. 1086, rights of bona fide holder are same, whether acquired before or after acceptance.

Liability of bank which discounts draft with bill of lading attached for breach of contract of sale where vendee pays draft. Note, Ann. Cas. 1913B, 45.

Payment to payees of bill in pursuance of legal obligation cannot be recovered back.

Approved in Equitable Bank v. Griffin & Skelly Co., 113 Cal. 695, 45 Pac. 985, drawee cannot recover check given in payment of bill, if drawer is insolvent; First Nat. Bank v. Ricker, 71 Ill. 440, 22 Am. Rep. 105, accepter cannot recover for forged bill.

Continuing force of contracts as against decedents and how such contracts may be enforced. Note, 68 Am. Dec. 766.

12 Wall. 194-201, 20 L. Ed. 378, HOWARD FIRE INSURANCE CO. V. NORWICH ETC. TRANSPORTATION CO.

When loss arises from concurrence of two causes, one insured against by A and the other by B, if damages cannot be discriminated, each must bear his proportion.

Approved in Phenix Ins. Co. v. Charleston Bridge Co., 65 Fed. 633, 13 C. C. A. 58, cyclone, being insured against, and being efficient cause of loss, and not water, company is liable; Brown v. St. Nicholas Ins. Co., 61 N. Y. 338, where detention by ice voids policy, insurer is liable where boat is forced on shore by storm, and then wrecked by ice.