[2, 3] 1. It is to be conceded that the District Court did not acquire jurisdiction by reason of diversity of citizenship of the parties; but we are of opinion that the court did acquire jurisdiction, because the laws of the United States authorize the taking of the bond in suit by the bankruptcy court. The case of Lovell v. Newman, 227 U. S. 412, 33 S. Ct. 375, 57 L. Ed. 577, is not in point, because the property released on the bond in that case was not within the custody of the bankrupt court. There the right to recover depended upon the ownership of the property by the bankrupt before the bankruptcy proceedings. In the case at bar the bankrupt's property was in the potential custody of the bankrupt court, for the adjudication related back to the date of the filing of the petition. Farmers' & Mechanics' National Bank v. Wilkinson Trustee (C. C. A.) 295 F. 120. We think this is a suit arising, under a law of the United States. American Surety Co. v. Schultz, 237 U. S. 159, 35 S. Ct. 525, 59 L. Ed. 892. Bankruptcy courts are invested with jurisdiction at law and in equity to appoint receivers for the preservation of bankrupt estates. Bankruptcy Act, § 2 (3), being Comp. St. § 9586; General Orders and Forms in Bankruptcy, No. 37. The power to require a bond in a receivership proceed

ing is incidental to and included within the power conferred by the bankrupt act to appoint receivers.

[4-6] 2. The trustee, as successor to the receiver, is the real beneficiary of the bond. Although the bond is made payable to the United States, it is so made for the benefit of petitioning creditors. The trustee represents the creditors, and has the power to enforce their rights. In Texas the real beneficiary can bring suit. Morris & Cummings v. Schooner Leona, 62 Tex. 35. The form of the remedy is governed by the lex fori. Willard v. Wood, 135 U. S. 309, 10 S. Ct. 831, 34 L. Ed. 210. The cases relied on by the plaintiff in error are not in conflict with this view. They merely hold that a suit may be brought by the obligee, and not that the real beneficiary is precluded from bringing the suit in his own name.

[7, 8] 3. Upon a review of the referee's order appointing a receiver, the District Judge approved and confirmed it, and by doing so required the receiver to take immediate possession of all the assets of the bankrupt. Immediate compliance with this order was avoided by the giving of a supersedeas bond pending appeal to this court. It is true that another District Judge in No.

It

4346 allowed a deduction in the amount of the bond, from which it is argued that there had been no order requiring delivery of all the assets of the bankrupt estate, and that therefore the condition of the bond has not been broken. But that argument ignores the prior order of November 26, 1918. is a matter of no consequence that the trustee has undertaken by summary order, as well as by plenary suit, to secure possession of the assets of the estate. He has the right to pursue both methods, although he is entitled to have his claim satisfied but once. The plaintiff in error cannot use the summary proceeding to defeat the plenary suit, and vice versa.

[9] 4. It was unnecessary to introduce a copy of the bond in evidence, inasmuch as the answer did not deny execution. Revised Statutes Texas, art. 1906; I. & G. N. Ry. Co. v. Tisdale, 74 Tex. 8, 11 S. W. 900, 4 L. R. A. 545. The cases cited by the plaintiff in error arose under an earlier statute, not now in force, and hence have no application.

[10] In No. 4407 the trustee has filed cross-assignments of error, in which he complains of the action of the trial court in refusing to direct a verdict in his favor for the full amount of the bond. There is no formal prayer for reversal, and upon that

miss the cross-writ. The defendant in error ground the plaintiff in error moves to dismoves to amend by including a prayer for reversal. Permission to do that is given, and the motion to dismiss is denied. The District Court found as a fact, and it is undisputed, that the bankrupt failed to deliver to the trustee an amount of money received by it during the period covered by the bond in excess of the amount therein stipulated. It results from what we have already said that in our opinion the court erred in deducting $5,290 received as salary by the plaintiff in error from the bankrupt. We are of opinion, also, that it was error to deduct the other expenses incurred after the petition in bankruptcy was filed. The bond sued on required the bankrupt to deliver to the receiver all money and property received pending the stay of receivership proceedings. Aside from the terms of the bond, it was plaintiff in error's duty to surrender whatever funds he had in his possession, and to submit any claim for services rendered after the petition in bankruptcy was filed to the bankrupt court, where they could be considered on their merits in the usual and orderly way as expenses incurred in the

In No. 4346 the petition to superintend and revise is granted, with directions for further proceedings consistent with this opinion.

In No. 4406 the plaintiff in error takes nothing. The judgment is reversed on the cross-writ of error in No. 4407, with directions to the District Court to enter judgment for $25,000, the full amount of the bond, together with legal interest, in favor of the trustee in bankruptcy. '

70

1. den 2,68 ECY-20 116545 Fu

Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.

MASSACHUSETTS BONDING & INS. CO. et al. v. WILKINSON.

WILKINSON v. MASSACHUSETTS BOND-
ING & INS. CO. et al.
(Circuit Court of Appeals, Fifth Circuit.
January 24, 1925.)

No. 4434.

Bankruptcy 113-In action on bond conditioned on delivery of all assets of bankrupt, crediting defendant with salary and expenses held error.

In suit on bond, required as supersedeas pending petition to superintend and revise order confirming appointment of receiver in bankruptcy, and conditioned on delivery to receiver or trustee of all property and assets finally adjudged to belong to it, it was error to allow credit for salary of bankrupt's president, clerks, and employees, and expenses for preservation of bankrupt estate.

In Error and Cross-Error to the District Court of the United States for the Northern District of Texas; William H. Atwell, Judge.

Action by W. W. Wilkinson, trustee of the estate of Walker Grain Company, bankrupt, against the Massachusetts Bonding & Insurance Company and J. L. Walker. Judgment for plaintiff, defendants bring error, and plaintiff files cross-writ of error. Judgment reversed on cross-writ of error,

with directions.

See, also, 260 F. 1022, 171 C. C. A. 669; 292 F. 395; 294 F. 939, 951; 3 F. (2d) 867, 872.

Clay Cooke and J. A. Templeton, both of Fort Worth, Tex. (W. E. Spell, of Waco, Tex., and G. A. Stultz, of Wichita, Kan., on the brief), for plaintiff in error and defendants in error on the cross-writ.

Stanley Boykin and H. C. Ray, both of Fort Worth, Tex. (Geo. M. Conner and Capps, Cantey, Hanger & Short, all of Fort

the referee of a receiver of the assets of the Walker Grain Company. The condition of the bond was that the grain company, in the event the relief sought should be denied, would deliver to the receiver or to the trustee in bankruptcy all the property and assets finally adjudged to belong to it. The order of the District Court was sustained by this court. Walker Grain Co. v. Gregg Grain Co., 260 F. 1022, 171 C. C. A. 669.

At the close of the evidence, upon motions by each of the parties plaintiff and defendant, for an instructed verdict, the court found that the bankrupt had collected, subsequently to the date of the bond, the sum of $10,193.61, from which the court deducted the sum of $4,367.46, on account of salaries to Walker, clerks, and employees, and of necessary and reasonable expenses for the preservation of the bankrupt estate, and thereupon directed a verdict for $5,826.15, for which amount judgment was entered. In denying a motion for new trial, the court required the trustee to enter a remittitur of $1,000, because of an error in not allowing that additional amount on account of expenses incurred in the conduct of the bankrupt's business. The order of the court provided that the entry of the remittitur should be without prejudice to the trustee's rights. It is undisputed that the Walker Grain Company collected and failed

to turn over to the trustee the amount found

by the court.

The questions presented are in substance the same as those in the case of J. L. Walker v. W. W. Wilkinson, Trustee, 3 F.(2d) 872, this day decided, and, following the rulings there made, the plaintiff in error takes nothing, and the judgment is reversed on the cross-writ of error, with directions to the District Court to enter judgment for $10,193.61 in favor of the trustee in bankruptcy.

FARMERS' & MECHANICS' NAT. BANK
OF FORT WORTH, Tex., Petitioner, v. W.
W. WILKINSON, Trustee, Respondent.
(Circuit Court of Appeals, Fifth Circuit.
January 24, 1925.)

No. 4378.

Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; William H. Atwell, Judge.

J. A. Templeton, of Fort Worth, Tex., G. A. Stultz, of Wichita, Kan., Clay Cooke, of Fort Worth, Tex., and W. E. Spell, of Wa00, Tex., for petitioner.

Stanley Boykin and H. C. Ray, both of Fort Worth, Tex. (C. M. Conner and Capps, Cantey, Hanger & Short, all of Fort Worth, Tex., and Orestes Mitchell, of St. Joseph, Mo., on the brief), for respondent. Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge.

BRYAN, Circuit Judge. Applying the decision this day announced in the case of W. W. Wilkinson, Trustee, v. J. L. Walker (No. 4346) 3 F. (2d) 872, the petition to superintend and revise in this case is denied.

cert den 267 W 603 69 LEd. 509,

Supt. 463.

AMERICAN R. CO. OF PORTO RICO V.
LOPEZ.

(Circuit Court of Appeals, First Circuit. De-
cember 5, 1924. Rehearing Denied
January 2, 1925.)

No. 1675.

1. Exceptions, bill of 32(3)-Acting judge of District Court for Porto Rico may sign bill of exceptions in cause tried before regular judge.

Under Organic Act Porto Rico March 2, 1917, § 41 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3803qq), authorizing the President to designate one of the judges of the Supreme Court of Porto Rico to act as judge of the District Court of the United States for Porto Rico during the absence or disability of the regular judge, such acting judge held to have authority to sign a bill of exceptions in a cause tried before the regular judge.

2. Railroads 307(4)-Company held required by statute to maintain gates at crossings; "insular roads."

Under Pol. Code Porto Rico, § 397, defining

"insular roads" as including such highways or roads as are included in the general plan of roads to be built and maintained by insular funds, a part of a municipal road taken over by legislative act as a part of the insular system, and which was then being maintained by the Interior Department, held an "insular road,"

within the meaning of the Railroad Law of Porto Rico of March 9, 1911, § 12, requiring railroads to "construct and maintain chains, gates or other suitable protective devices at all crossings of insular public roads."

3. Railroads 308-Violation of statute not negligence per se, but evidence of negligence.

Under the rule in the federal courts, which is one of general law, failure of a railroad company to comply with a statutory regulation is only evidence from which negligence may be not negligence per se, or as matter of law, but

found as a fact.

4. Railroads 309-Measure of care in running special train at crossing stated.

In an action for injury to plaintiff, who was struck at a highway crossing by a special train on defendant's railroad, an instruction that, as the train was not scheduled, defendant was required to use the utmost diligence and all means to protect travelers on the road, held to place too great a burden of care on defendant, the fact that the train was a special one being a circumstance to be considered by the jury with other facts in determining whether it ex

ercised reasonable care.

5. Negligence

122 (5)—Presumption from instinct of self-preservation applicable only in absence of evidence.

In the federal courts the burden of proving contributory negligence rests on defendant, and the presumption arising from the natural instinct of self-preservation is to be indulged in plaintiff's favor only in the entire absence of evidence as to his conduct at the time of the accident.

Anderson, Circuit Judge, dissenting.

In Error to the District Court of the United States for the District of Porto Rico; Arthur F. Odlin, Judge.

Action at law by Carlos M. Ramirez Lopez against the American Railroad Company of Porto Rico. Judgment for plaintiff, and defendant brings error. Judgment vacated, verdict set aside, and case remanded.

Francis H. Dexter, of San Juan, Porto Rico, for plaintiff in error.

Jose A. Poventud, of New York City, for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge. This is an action to recover damages for injuries sustained on the 24th of June, 1922, in a collision between an automobile and the de

fendant's train at a highway crossing. The accident occurred while the plaintiff was crossing the defendant's track at grade. He was injured and the automobile destroyed. There was a trial by jury in the federal District Court for Porto Rico in

death, absence, or other legal disability on the part of the judge of the said District Court of the United States for Porto Rico, the President of the United States is authorized to designate one of the judges of the Supreme Court of Porto Rico to discharge the duties of judge of said court until such absence or disability shall be removed, and thereupon such judge so designated for said service shall be fully authorized and empowered to perform the duties of said office during such absence or disability of such regular judge, and to sign all necessary papers and records as the acting judge of said court without extra compensation."

It is admitted by the plaintiff that Judge Odlin, the regular District Judge, was absent from Porto Rico at the time of the allowance of the bill of exceptions and it is not contended that Hon. Carlos Franco Soto was not at that time one of the judges of the Supreme Court of Porto Rico, or that he was not designated by the President of the United States to perform the duties of the judge of said court during the absence of the regular judge. Under the circumstances the bill of exceptions was properly allowed. See, on this subject, Guardian Assurance Co. v. Quintana, 227 U. S. 100, 33 S. Ct. 236, 57 L. Ed. 437, argued before the Supreme Court January 6, 1913, and decided January 27, 1913, where in the opinion of the court the Act of January 7, 1913, is referred to.

The motion to dismiss the writ of error must be denied. It is true the writ should have been attested by the clerk of the District Court or by the clerk of this court from which the writ issued. Revised Statutes U. S. § 1004 (Comp. St. § 1663). And prior to the enactment of section 1005 of the Revised Statutes in 1872 this omission would probably have been a fatal objection to its validity and to the exercise of any jurisdiction over the case by this court. But section 1005 provides:

"The Supreme Court may, at any time, in its discretion and upon such terms as it may deem just, allow an amendment of a writ of error, when there is a mistake in the teste of the writ, or a seal to the writ is wanting, or when the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form:

provided, the defect has not prejudiced, and the amendment will not injure, the defendant in error." Comp. St. § 1664.

The power conferred upon the Supreme Court by this section is also conferred upon this court with respect to writs of error issuing from it. Cotter v. Alabama G. S. R. Co., 61 F. 747, 748, 10 C. C. A. 35. The omission complained of being a defect in form within the meaning of section 1005, it may be amended.

We proceed to consider the case on its

merits.

In its assignments of error the defendant complains that the court below erred in refusing to direct a verdict in its favor, in giving certain instructions requested by the plaintiff, in refusing certain instructions requested by the defendant, in other instructions given to the jury, and in the exclusion of certain evidence.

The plaintiff's evidence tended to prove that the defendant operated a railroad for hire in Porto Rico, a portion of which extended from the town of Lajas to the town of Boqueron; that a public highway beginning at San Juan ran past the defendant's railroad station in the town of Lajas and crossed at grade that portion of the defendant's railroad extending from Lajas to Boqueron at a point 600 meters from the Lajas railroad station; that said highway, prior to 1916, was a municipal or town road (extending from Lajas towards the west coast of the island), but that in 1916 the Legislature of Porto Rico authorized an issue of bonds by the people of Porto Rico to the amount of $2,000,000, for the construction of roads and bridges (Law No. 71, p. 136, Laws of 1916), in which the portion of the road here in question was designated as one of the roads to be built, maintained and controlled by the Department of the Interior of the Island, namely, from Lajas to the town of Guanica, a distance of 52 kilometers, and from there to La Parguera; that at the time of the accident in question the Department of the Interior had constructed and was maintaining said highway beyond the crossing in the town of Lajas, where the accident occurred, up to within one kilometer of Guanica, and that the portion so constructed and maintained was opened and being used for public travel; that on the date in question the plaintiff was driving his car northerly on this highway towards Lajas and the defendant's train was coming southerly from the station of Lajas towards the crossing; that as the highway approached the cross